what does someone need to do other than work harder in order to get a promotion or the top answer was either sleeping with or dating the  she complained to mister campbell is because he had to have the team building exercise twenty two days after the combine to mister ward fifteen days after the complaint of mister kim mister hora was discharged does she present sufficient evidence to create a genuine issue of material fact that the reason given by charge for her discharge or for farms was pretextual and i want to make sure we're focused that's the only action such that in fact finder could rationally find them unworthy of cretins infinity dealership peter proximity is not miss world's only evidence a pretext and the district court erred in not finding that other evidence along with the temporal proximity was sufficient to raise a material question on the nd one is that the court calculating the time that miss oral had been working for i h r to be three months when it was actually two months and that makes a big difference when you compare her performance with the performance of sales reps and then the last one has to do with the destruction in her is that in terms of making the terminations decision mister thumble who a guest made the decision didn't compare misheard to mislead he compared instead to two other employees don't believe the court and accept the fact that mister thumble was the sole decision maker as was shown in the briefs mister ward was involved in at least three different meetings and the court should be skeptical of all the facts that can't be proven or disproven by any any particular was there any evidence that the decision that she was not  performing to the same level as her peers involved a comparison to ms leach act in the to the court it was yes absolutely no i mean evidence that the decision to released at the time of her when they let her go was that actually she was very experienced and maybe should be compared to more experienced people who were selling more it could hold miss for al to a higher standard than it's other employees and if you look at the comparisons it makes with the other hand ways it doesn't it doesn't say well there's employee had three months experience  had eight months experience and therefore and this one had two years experience and therefore we had to hold him to a higher standard so there's no evidence that that that was  motivating cause for her terminations and other words there's no evidence that had she sold two more cars or three more cars or whatever that she still would have been discharged because she was more experienced than they expected her to to jump right out of the gate so yet thank you ok sure i mean let me focus you on the disruption in phone service for a moment sure did you put on any it did you come forward with any evidence that this disruption was intentional or is not something you thought was a proper call so it was not broken it just stopped receiving sales calls all the way the process worked as the sales calls went out simultaneously the sales people's phones in their office never picked up the fastest got the sales call because my phone did not receive sales calls i did not get any of them i tested my phone by calling the dealership and pretending i was a potential was i or when a sales call went out the other of sales phones rang mine did not all and so so that clearly establishes that there that there was a problem with her phone my question goes beyond that my question over the method for sales calls the fact that it was done for some unknown reason does not i think grief a very narrow issue in an employment case the plaintiff was discharged and she brought explicitly a title seven retaliation cases court knows and that issue before the trial court was whether plaintiff president sufficient evidence in the summary judgment context to establish that the concededly legitimate and non italia tory reason for plaintiff determination was protection will she was required to come forward with evidence to link or couple the temporal proximity of her terminations with some other circumstantial evidence of retaliatory motives on the part of the defendant and this is a linkage that she simply failed to even come close to making this court like the trial court muscles determine whether a reasonable fact finder could conclude that defendant's legitimate reason for her trauma nation report performance or production report effort is protect your will and unworthy of belief the trial court found that she failed in satisfying this burden it found no reasonable jury purposes of comparison i think there is uncontested the she was not allowed to sell cars until september th she wasn't licensed to sell automobiles until september th doesn't that suggest that the proper calculation of her month of hire and her st film on are that it's the temblor and october is her st full month the subject of discovery or argument to the court but employees start at a car dealership and they complete paperwork unless they're transferring from another job where they were licensed to so we are cols they don't have a sales license they have to go through the process of applying for and getting a sales license september th that is a critic that's undisputed well i don't know how you then ken can count against her automobile she didn't sell it on this i think the reason is because no employee walks in the door as i indicated with a sales license and so there's always going to be a certain amount of delay and as plaintiff argued substantially to the traffic court she had all sorts of training that she needed to do and of course that's the kind of thing you would expect employed to do on the front end  point is getting accustomed to the new job if there's new product information in it that there's something unique to the dealership you need to do that but to your point she could not sell a vehicle lawfully in colorado until she got sales lists that's true sell an automobile and it makes no sense to me to hold someone accountable for not selling automobiles in a month which rather than allowed to sell automobiles as a matter of law there is no evidence in this record as to w discover your argument to try it in terms of the actual pretext analysis which is what this case is about plan it had the obligation to come forward with some evidence linking her october th two thousand and sixteen protected activity and robert fumble with her direct supervisor he was the sole decision maker with respect to her terminations this is under speeded argument of counsel notwithstanding this is undisputed he reached a decision because of her poor performance and his perception of her lack of effort value waited on two months or three months she sold three cars during the entire year for employment and her production and her performance was below others at the maharani dealership and below others hired i h r historically in terms of new employees when they come in the door her production was specifically below the performance of three other sales consultants hired by h r at approximately the same time and that would be mislead about who you have heard much argument but more crucially i think it's also true with respect to mister collegial and mister rice who are hired to work at the mother of a dealership on august th two thousand and sixteen and so their performance is evaluated in august and september or october and infinity store and that data was presented to the district court and both both sides presented argument about it the actual performance of those of lawyers at the different stores is it was discussed  ire but i think in order to be able to meaningfully compare their performance of those employees about whom we have no information as to when as you mentioned earlier a sales license might have been obtained from an apples to apples standpoint the district court reasonably compared r inc collectively is no different than any of those ploys were treated in other words if someone comes in and in the st month or two sells only three vehicles they're not going to remain employed there either leaving on their own or they're being asked to leave higher your one hundred it can't be based on the date of sales license chairman because that information just simply wasn't available i would be that would be an extraordinary amount of data it wasn't sudden discovery it wasn't presented to the trial court to it's not something that's in the record  available for review but it's a different date and i would agree with you it's conceivably a different date for every employee to start somebody that starts on the th of august for instance may not get a sales license until the th of august can so cars in that st week that's a fact we don't have that data and this record wasn't an issue of material fact that needs to be resolved at trial i don't think it is and if for no other reason then we have two employees who were hired in august of two thousand and sixteen ar substandard mister collegio sold four cars during the his st two months of employment regardless of when he received a sales license mister rice sold sixty of kools during his st two months of one august and september the plaintiffs sold only three vehicles during her even even giving her a start date of september six instead of august th which is what all the records reveal even giving her the benefit of that argument that she started on september th her performance was nonetheless below the performance of the other two new hires at the most ready dealership and this is so as it made may reference this is so despite her five years of experience when she was hired and this is again an undisputed fact in the record presented to the district court when she was hired mister thumble reviewed her experience and that was part of the appeal of hiring someone like her she had five years of success selling automobiles should have been able to come in and perform without the same level of hand holding and training that a new hire might so when he reviewed her performance and saw that it was substandard even compared with two new employees would never sell the car in their life at that same store she came up lacking and when he reviewed that performance coupled with his own observations of her lack of effort or lack of engagement in the process and her unwillingness to follow the established sales procedures that were in place at this dealership he made the determination independently that she was not performing and that she should be terminated that's the determination that's the decision that must be evaluated you because it is the decision of the manager or the decision maker that has to be reviewed and his perception of her performance that must be subject to the pretext analysis and that's the zimbo case and from this from this court and also a more recent case in august robinson versus barrett evaluating that very issue and that is plaintiffs simply cannot present evidence to establish that that linkage that pretextual includes that that is necessary and the district court determined that no rational fact finder could find that explanation on worthy and present plaintiff has presented court or to this court to overturn a determination on before you run out of time i'd like you to address the argument that somehow her phone was disabled is there to to raise one of the issues the plaintiffs suggested in the briefing there was that she had raised the proper compared her argument as recognized by the court in herrera and and she didn't i mean it is the only arguments raised about the comparison to julianna leach and again i say charge the employer of all of these plays so the performance and the treatment by the defendant of the boys are out the dealership the defendant suggests anyway is relevant to just determining pretext that we treat her differently o store as a whole then we treated our other lawyers but at the trial court plaintiff argued that the quality of the complaints made by mislead was different and that they sold different kinds of vehicles and that was it was demonstrated quite clearly cannot be true given the actual sales that she had but but plaintiffs now now suggest that because they had different supervisors and other issues that fall within the herrera proper comparative argument that misleads should not be considered should not been considered by the trial court should not be considered by this court there's no there's no basis whatsoever to consider that that would have been the same comparing different stores different supervisors different time frames different years so some planets argument if the proper comparative or issue has been properly raised would essentially issue on one hand they argue that mister thumble was the sole decision maker with respect to miss oral and on the other hand they then turn around and argue that when comparing her mis each they should be viewed he should be viewed as a supervisor and if he's not making the decision with respect to the the terminations and he brief in the trial court or in your brief before us oh yes your honor it was raised in the trial court and i'm and please don't those may not be the right pages i don't have the bricks in front of definitely raised in the trial before and that's part of why you know the court relied so heavily on the juliana which comparison in the court before you it was raised quarter or sales as she did so if we use what they basically that the information they provided then basically we compare the sales whether they're true comparative inherently handicapped by using those sales people from other sales other other dealerships but for the purposes of the brief we accept and the numbers they provide and show that if they that she performed as well or or are even better than at least ten of the other people here on of time i think it will take this matter under advisement