emphasized that virgie little evidence is required of a plaintiff to survive summary judgment because the ultimate question can only be resolved through a searching inquiry one that's most appropriately conducted by previously noted without a searching inquiry into these motives those acting for impermissible motives could easily mask the behavior behind a complex web of post hoc rationalisations  has also stated that in a title seven or other employment discrimination action which employs the analytical framework of mcdonnell douglas when you arrive at the pretext stage the in the noise case the court also said that where the evidence of pretext is circumstantial rather than direct the plaintiff must present specific and substantial facts showing that there is a genuine issue for trial however that requirement that that in the case of bench the record is replete with genuine issues of material fact concerning the motivation of the decision makers in this case to take an adverse employment action against john killingsworth your honor when it came to the trial court's analysis of whether or not plaintive had shown pretext had shown that there was a genuine issue of material fact for purposes of pretext the first thing that the court looked at was the existence of the state action the state form permit of action plan and the court said that that did not constitute direct evidence of discrimination for two reasons number one because the plaintive had not proved the invalidity of the plan and secondly because there was no nex connection between the state farm affirmative action plan and the adverse employment action taken in this case your honor we would submit that analytically and doctrinally the trial court as part of showing a legitimate nondiscriminatory articulated reason for the adverse employment action that the burden then shifts to the plaintiff under johnson versus transportation to show that the plan is there was an affirmative action program and the court stated quote we find that the existence of the b w f program the sufficient to constitute direct evidence of a form or practice of discrimination quote furthermore even when a defendant did not having acted pursuant to its affirmative action plan if the result that instead it may have done so a jury must decide whether the defendant in fact acted atherton's that created genuine issues a material fact for purposes of all fifty six your honor i understand that the court says that the existence of the affirmative action plan by itself may not these sufficient i you better circumstantial evidence of pretext in this regard in two thousand gonzalez comes to become regional vice president of the sun land region in two thousand state forms presidents planning messages handed down and it stated that the first city is the goal and that the regional vice presidents are going to be financially incentivised if they are able to hire minorities and women and promote eligible to have their bonus increased by ten percent and d there's a disincentive if they don't comply or try to obtain the two thousand process goal of hiring minorities and promoting them into positions of management they are subject to a ten percent diminishment of their bonus in two thousand and one the process goal says we adopt the two thousand goals so that certainly by i am friends wit explicitly the two thousand and one process goal saying that if you are a regional vice president or vice president of the agency and you promote women and minorities into management positions you will financially benefit by virtue of a ten percent increase in your bonus so that's also in play in the year two thousand and one what happens is that my client middle aged  white very successful manager for state farm is alternately replaced by a younger hispanic agency field executive by the name of the martinez as a result of that it's the record also conclusively establishes that mr gonzalez reports that fact the fact that a minority candidate has been promoted into a management position agency thiel executive reports that fact that his two thousand one year and we port to state farm management pursuant to which he received ten percent in excess of his bonus have sought for so far we're not talking about the reasons state farm has given for the adverse actions they took against your client could you address those yes your honor and the only reason that i laid that as a predicate is to show let's get to the reasons stated your honor for over twenty years mr killingsworth had an exemplary record with state farm his management style his conduct had never been criticized he was an extremely successful manager he had achieved what's called inner circle status on three or more occasions most recently in the year before this adverse employment action in the year two thousand and in june of two thousand and one he's called into a meeting where mr gonzales says to him that certain members of his agency field group have leveled complaints against him that he's threatened their jobs he's threatened them physically he has a harsh managerial style etc mr killingsworth goes on later to dispute those facts in very specific detail but in any event mr gunn mr gonzales says to him unlike any other agency field executive in the history of state farm you are to leave your office you are to have no communication whatsoever with your employee while we investigate the record also shows that at the conclusion of that meeting consult was in a way it's had already made up their minds they said that mr killingsworth has failed his leadership responsibility and they listed six specific reasons so prior to the investigation which they say they are going to conduct your honor and prior to giving mr killingsworth an opportunity to rebut the allegations that have been made against him they had already made their decision and why he made that they made that decision because in april two months earlier of two thousand and one there is evidence that the home office well mr killingsworth is the agency field executive for the phoenix metro region there is only one agency field executive for that region there are other agency field executives in arizona but the management believed these allegations and accusations to be true and i think that we submitted a lot of evidence showing that they didn't believe that but even if they tag doesn't mean that they weren't motivated by a discriminatory purpose state farm in fact could not or should not have believed that there was a genuine issue as to what their true motivation was to make the accusation where are still a boost  employment action is factually denied by mr killingsworth and he also submitted pollutants written documentation in support of his denials surely also evidence in this record showing that the decision maker had a discriminatory purpose for doing what he did and the fact that a stated reason for the adverse employment action may be accepted by the jury down the line may be credited by the drury actually doesn't mean that the possible discriminatory motive of  decision maker evaporates they're both at play we're not saying and i'm not suggesting that the jurors in this case could not accept the stated reasons for the adverse employment action what i am suggesting is that the jurors didn't don't have to credit they don't have to accept the inferences which the trial court accepted they don't have to accept as true says he believed and most importantly there is evidence in the record that consults really didn't believe what he stated he really didn't believe some of the accusations that have been made against  issue of the least of the huma building for which mr killingsworth had already been exonerated comes into play you know we were down to fifty one seconds why don't we save when we magically increase the forty record seven eighty nine in my prepared statements i'm going to address the constructive discharge the contract issues very briefly  and the pretext issues on the first emotion obviously i answer any questions that the court has on any other issues turning first to constructive discharge there are three hundred feet of facts that plaintiff was not constructively discharged this court sets a bar high for a claim of constructive discharge because any discrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship that's a very recent polling decision it for ninety four said third eleven seventy four it's not cited in the briefs it was handed down sense polling goes on to note there for an employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged so exactly what mr killingsworth did he never complained of race or age discrimination disputes there was ever some point at action martin is there any dispute that there was adverse employment action taken and i'm really not sure why constructive discharge becomes the first issue because that he was the motive and so why why the focus on his record just charged please the court wanted since mid june two thousand and one he wasn't constructively discharged and at the time he did that he had a job he viewed as very viable and doing very important work and had to pay the level that reversed there has to be some specific substantial evidence of a pretext and there is not looking at the falsity issue which the court focused on with mr broida under the his supervisor honestly believed what they said was their basis for acting and the record is loaded with evidence upon which they could have reached that belief and there is no evidence that they did not honestly believe that the employment discrimination law treatise just came down the fourth edition recently notes three other general categories of evidence that this court would typically look to discriminatory statements comparative evidence and statistical evidence the discriminatory statements are off the table because mr killingsworth admitted that supplemental record eighty seven eighty eight that there were no discriminatory statements made involved in communities and it talks about recruiting minorities and i understand all of those things and that is not that's a leap to say that's evidence of discriminatory moti of individuals in a different region earlier who are the actual decision makers would be my my thought here the plane of says the that he's not relying on comparative evidence or statistical evidence he makes that in plaintive says that mr martinez was pre selected to replace him and that there's that that's something that can be inferred i want to talk about the actual evidence and then the court can discern determine whether or not reasonable inference would be that which pla advocates the evidence is that in january mr martinez tells mr midweeks i want to go to the sunbelt to a field position and i want to go at my own salary that i've got right now that we are forty six five forty seven forty eight in february mr dan in which talks to mr martinez and tells him about the edge and the center that's opening in the sunland region at c r fifty five fifty six in march mr weeks m martinez boss at corporate announces that mr martinez will be relocating to phoenix around july to spearhead a new agency service center that's completely consistent with what we know to be the case six days later mr dan which gives mr killingsworth commendable appraisal not something you would do you're going to get rid of me in april the corporate payroll department does say when mr martinez committee choose as mister martinez in september plaintiff knows he's been demoted plaintiff knows he's agency goal is that risk and yet he writes to mr right and he says to mr right mr martinez was new to the region the plan was for mr martinez to work under me as his supervisor at the new agency center that is exactly what mr weeks announced back in march and that subsequent to the proceedings that i'm now talking to you about that is as bad  difficulty with his with his employment then mr martinez his plans were changed he doesn't believe in september that this was pretty ordained matter and then in year end the two thousand and one performance or process goals that have been discussed the core remember that diversity was one of the goals and i would respectfully submit it's not an affirmative action plan it's a diversity plan a diversity policy and program and that's a lot of a program under the peterson case it's not an unlawful program there are no goals that statistical goals or anything of that nature in that plan there's no evidence of that whatsoever but anyway more important in that in that report mr gonzales takes credit for bringing mr martinez to the region but he takes credit for bringing mr martinez to the region a leadership and development move by moving people from corporate to the region completely separate part of the process goals a part of those goals he does not take any credit whatsoever in the diversity section of his report and in fact if you look at the diversity section of his report a great deal of it deals with diversity in the broadest sense cultural sensitivity communications what have you not hiring and and promotion of minorities and this two thousand and one process goal that he's dealing with if it please the court is a process goal that has diversity in it just like the two thousand goal but it does not have the admonition that was in the two thousand university subgoal saying we're going to look and see if you're promoting the northeast and women to leadership that is eliminated in two thousand and one based upon those items of evidence if you will i would respectfully submit that is not reasonable to conclude or to infer that mr killen is worthless mr martinez was brought to the region to replace mr killingsworth because of his age and because of his race unless the court has other questions i certainly would be glad to answer them  martinez how this is kind of a generic question it is a little puzzling to me how we can have a man who has been so successful for so long all of a sudden lose that in such a spectacular fashion well has been hold it he's been on air and all kinds of good things are happening and then all of a sudden we get these meetings and all of a sudden apparently the management style that has been pretty consistent all i gather is kind of a hard hard  the right just people and all some people don't like that but doesn't sound as though he's just different so what's going on here well your honor i don't know whether he's different or not what i do know is that it's not unusual and i don't mean to raise this to this level but it's not unusual for the individual suffering under a tyrant to not speak up until one does and then they get the courage to do so and they come forward in this instance this enrica has filed a charge of discrimination in january that's not mr that maybe it's because exactly what they said they were being threatened if you don't take my side against mr ising run i'm going to have your job now that might scare somebody to the point where they would go around mr hamilton role trainee agent their livelihood depended on pleasing mr killingsworth they had to they had to do what they were told and there's no question but that there was a clear discussions of racial insensitivity there was cl and mr killingsworth were coming to a head and there are conflicts and mr killingsworth was telling this farmer mr a kids you take my signed it against the eyes and run or you're out now that all is coming together  not too late may early june the record would support them that might explain the timing of that answers of course question thank you if the court has no other questions  i think not thank you very much response during the discovery process after the lawsuit was filed yes what i'm now reading in these memos and i've got him here in front of me correctly so read from the memo on seven eighty nine and these were  martinez to mr killingsworth and yet the position your honor i think that what this discussion shows beyond any question is that there were substantial issues of fact with respect to pre interest in the human building quote we have a problem close quote and finally this human resources officer says state farm's position was quote sloppy if the matter proceeds to court close so not only is there in abundant factual record your items that the stated reasons for the first emotion and for the second emotion which  were not true and were internally inconsistent and were not worthy of belief so you have state farm's own management questioning what went on here there are a lot of blanks that