minutes back on the clock and please proceed thank you this is a very important case i think for all plaintiffs out there because can i ask a question if it's such an important be issues that we stated in our initial brief sufficiently outlined the errors that were made so that the government had nothing to say that you thought needed response i think a lot of the arguments that the government said in their brief merely parroted some of the errors that were made and that the district court level one of the made errors that i believe was made was changing the mcdonnell douglas standard but it is always been used in pre text analysis and we're talking pretext in this case it was very apparent the district court's decision that it stopped at the employer establishing legitimate nondiscriminatory reason for the look let's assume for a moment that your best argument is the best evidence i should say is temper approximately right so dry fourteenth july nineteenth july twenty first three key date go first the most glaring issue was the discovery that we got from the postal service showing that mr the supervisor previously had filled out one of these dr robin ration forms for another employee who had the exact same violations that she had but he had the cheek committed and on that form and i question mr in the room about this there was a box where it could say what action was taken case in case he exercises discretion on the exact same facts to impose discipline which ultimately led to her terminations where in this gentleman space he nearly got a discussion mistress rosie the union representative who was a part of the meeting where this case in report of the sexual harassment he also testified in his experience since two thousand and nine that again a supervisor given this discretion and in his in his experience these types of issues are struck under the rug he had employees would come to him who had been observed with their feet hanging out of the postal vehicles they didn't get disciplined he testified about a a transitional employee who wrecked the postal vehicle into a wall and was not terminated for that just a number of instances that showed that this type of issue does not lead to terminations so so hopeless on the no zero both made it very clear that just because somebody denies knowledge in these types of cases isn't preclusion you're entitled to look at the circumstances surrounding the situation to make a determination as to whether knowledge can be inferred i know i  his sexual harassment and mr soros you know union rep who was there also mr soros he says it in his deposition and the maybe i'm mistaken but i thought she said she did not she complained about the sexual harassment but she did didn't have a recollection it appears who was but even if we got past that and we were going to ask the question it's just a start  that temporal proximity were all that we had as a legal matter is that enough to say ok that can go to the jury i think the case law supports that the jewel case out of the third circuit had  two day window where was determined that temper proximity was sufficient to support an inference of causation likewise the facility case that we also relied upon had a three week window where it was determined so a five day window falls well within that so i believe that it is specially when you factor in the weekend here and you know we don't know the schedule that everybody had a reasonable jury certainly could see that the first opportunity to go to an attorney discuss what's happening at work and that attorney can give the well reasoned opinion based on all of the case law out there say a hostile work environment to very high standard to meet you have to basically sit at the workplace is intolerable when you're talking retaliation there's a good reason why we don't have that because this is a person who might not think to go to an attorney and report the things these things are happening to them in the workplace and they do with any reasonable person would do they g but your complaint itself uses the word coincidentally paragraph thirty nine to your complaints as coincidentally mr rude because you know if it's if it's happenstance that he's where she is and he sees the violation does that doesn't that undercut your assertion that oh well this was they were in for her at the temple proximity it won't carry the day using the word coincidentally it was was based on what le roux and the fellow supervisor testified to that they were out doing their rounds and just happened to come across or given some credence to what they said but the themselves in her proximity and they they were you know following her intentionally you know who incidentally bumped into or part of put themselves in the proximity of where she sat that doesn't mean that there they necessarily were following right behind her the entire time put themselves in that need that's why i took until tuesday because i i don't know exactly how the postal service works but i don't know if you can tell exactly where a character's going to be every moment of the time you can put yourself in their territory really big give them a ro you believe ninety ninety for the general case but more recent case daniels indicates to me that it's going to be extremely unlikely to find some approximately amount but in any event you still have to show knowledge and that's something that she is not that her burden on in this case when you say she still have to show knowledge you would have to have that i mean knowledge is implicit included in causation right i mean right ok so if we have said  and said presidentially that that temporal proximity alone cannot satisfy that causation standard well why isn't that enough in this doing something i admit i should have done but i did and then i'm fired why isn't that under the that set of circumstances which were required to take is true at this point enough to say a rational jury could look at that and believe it was no coincidence that mr libby was there and it was no coincidence that she was fired within five days well several reasons first to respectfully disagree that the case law would allow her to  but she has no evidence to refute the testimony we have on the record for a jury that's that's the that's the question we have to deal with i'm not i'm not in i'm not suggesting or implying in any way to that ms case it's case is a winner i'm just asking you the legal question when we have to take every inference and the record in the light most favorable to her and our own case process temporal proximity alone in the right case can satisfy the causation  because her allegation of proximity has no foundation in terms of what actually happened she can't shadow that anybody had any idea where her premise is they were out to get me on that day and she has no testimony to support that in in the interim time for the first time you've been reporting the you know whatever the exact driving problem that she had was you learning discovery that there have been other instances of other people right she still has to show that our reason is in corrections to show that it's false and to do that she's got to show to be a we went out to get her testimony is the exact opposite she concedes that she committed but she committed right there's no  infraction different result that that right there tells you oh and on top of that you've got mr soros the the union rep president who's been around for the last five years and he says i've never seen anybody get fired for that if it happens never seen anybody fired for the good you get out in the mix if you look at it in the light most proximity is enough to supplant knowledge but i think you lose right it seems to be saying it's not enough discipline or for example person complains to supervisor about parish went on the job the very next for clock in the afternoon right the next morning at nine o'clock employee comes in and is fired by the head of human resources that's pretty good temporal proximity right right president bush sr i mean we used to say well you've got to link up it's somehow the head of human resources a new that employee complained to supervisor is that the decision to try to relate made by person b right in that would be our position with regard to that part of the case that going back to the issue of the refuting are legitimate nondiscriminatory reason by showing it's pretax this court just decided to which i cited in twenty eight j letter which points out the very end it's a higher level of specificity that's required when you come back and try to show pretax and she hasn't met that burden here and that it's because if you look at the back of it there is what here we have the assertion that there was another employee that wasn't this one and then we have cirrhosis testimony that this happened this kind infraction happened on other occasions and nobody was disciplined for it ok taking notes or taking  of historical fact is in fact i'm the union president i've been around this post office for years i see these problems come up i know people have done this before and i know that they have been disciplined that's it in   l now they can believe him or not believe he's a person witness who says he's aware of this and it shows what the practice is at that post office is there a reason why that in it's important to recognize that he's talking about employees it his thoughts that do a good job and for these they do what they're supposed to do he says he's not comparing apples and oranges he's talking about what employees that failed to provide that happened a year and a half before her terminations the bikini incident she's the one that brought the fight it back then so i don't know how you could have an unwelcome comment when you're the one who brings the den and puts it in her words out for everyone to see and shows that to four or five employees some of them end i think it's even more aptly applicable in this case than usual because of the amount of discretion that's given to the supervisor in general and i want to see evidence in the record that that the complaint to hauser was brought the other instances that we clearly need to that would show that this decision isn't made in other circumstances so you have to ask why was the one who make this decision in this case and i think the reasonable inference was that was because five days later this and this girl just reported me for sexual harassment i think that's a reasonable conclusion that a jury could reach a final you know about this issue of the other drivers record where the similar  crossing lanes of traffic with the door open was reported in this person was not disciplined the postal service is the custodian of record we requested this forms they provided them to us i think the form of speech or itself but it didn't speak for itself the postal service i had the opportunity to provide us with the the facts surrounding that situation to say oh this is this is much different this is right this person got a discussion but they didn't do that it's not allow us to do deeper