mr brown was employed by z f for t r w or whatever the title was at the time of her terminations for approximately fourteen years for most of those years from two thousand and six through two thousand and fifteen she was a ploy to as an that her job would be eliminated they transferred back to germany and wouldn't be conducted here in the united states as a consequence she resigned her employment in november of two thousand and fifteen just prior to her resignation  of time had consistently evaluated miss brown as a solid contributor to the company it was one year raised concerns in those a valuation she did she did have and i would suggest to the court that that is a normal process if you're going to do it if performance evaluation for any employees over the course of the year that you do two things number one you identify the things that they do well but you also identify areas for improvement that's a normal and proper course of card deck and in fact typically in most companies if you look at the evaluations that are conducted over a year there's only a small percentage that reach that very top element in this case outstanding contributor might be five percent over the course of the year the bulk of the individuals are middle category and reasonable for a company when hiring to shoot for people that are outstanding leaders or should they sat are they required by law for some reason to settle for something i think they're think they can make adequate choices what they cannot do i even miss zandi testified that a person who is a solid contributor over a course of history even a solid contributor my this is not disqualified from being considered i didn't know the person and i read the evaluations from two thousand and thirteen to two thousand and fifteen the last three years i mean it would give me pause to hire someone with these issues right because if and i'm sorry if there were other candidates that i thought were bad or correct if they were there on their face if i did space you had a better candidate under these circumstances where she was terminated because her position was eliminated and they acknowledge that she was not terminated for any performance issue had nothing to do with their separation was solely because mr penske's position was eliminated at that time there were three open positions i suggest to the court that there were two policies of the company suggested that they had to consider her at that time for those three openings that were available in december of two thousand and fifty eight january of two thousand and sixty she was never considered she raised to that determination meeting said are there any other positions for which i'm  candidate that the job posting policy which said under those circumstances if you could eliminate a job elimination you look at that candidate they never did miss mcconnell sat at that meeting the head of h r never suggested that  positions that she was qualified for and then she was qualified for that she was a solid contributor and respond to your suggestion in terms of whether or not she was a good candidate i would strongly urge the court to take a look at the last three evaluations even the one and i think you have to look at the positive and if you look at the positives i just i don't understand why just explain to me why kompany asked if i am making a hiring decision you're you're often looking for reasons to eliminate people when you and so if there's a number of reasons she's struggling to perform as they said certain aspects of the job why do i need to look at the positive too if i think i've got someone who doesn't have that negative number one here you're balancing one node versus a complete unknown that's hiring but but but that's not what most companies do as i would have a known i'm going to use it in my process and i'm going to weigh that against the on now i would suggest that what the known was that the parties here looked at was the fact that miss brown suffered from asthma she was in she's the one who gave miss brown her note terminations notice she said in that the meeting she certainly would have known never stop to ask a pet terminations and the problem it's not being hired in these right right  well it's both because at the time of her terminations there were open positions available for which she was not considered there were open positions and the normal course of events pursued to their own policy was to give that position to a person whose internal that's what the jap provides that's what the jap recruitment provides to eliminate a job elimination if you could do that you could transfer someone from a position of being a limited to a position that's open you do it especially if the person is a solid contributor and has any problems if you look at those evaluations over the years and don't sit in just don't focus on the few negative comments but look at all the positives provides good support to the i a t can't be counted not to fully research assignments perform personally delivers these last three evaluations and i think the testimony is summarizes them with this whole i misquoted from that point forward doesn't consider for any hope of business sense and if you look at the form of if that they provided in terms of categorized as follows applications by individuals from that point out every comment was not interested in fact miss miss why testified that this proud would never be interviewed or better employee but simply that in the reaching of that decision as to who to hire they they were not permitted to take into account her her disability unless of course it couldn't be a  i think i can wait a minute and end the i'm trying to help you out i'm going to sit down and they guy obviously couldn't take into account the f m taking of their family leave they did i mean there was a questionnaire that was filled out by applicants do you suffer from any disability one of the questions one of the questions that i found this because just totally bizarre one of the questions i was how much time do you think it's reasonable for deploying to take off from work other than vacation that's a question she asked of people i mean that to be suggest that you're looking at try to eliminate folks who may have a history of  history of disability or have some restriction that ability to perform the job despite those things she did a great job for nine years and can't get an interview or when trying to look at the issue pretax and going through the down douglas balancing wes the what's your best argument as to why the decision the adverse decision regarding your class employment a solid contributor for nine years was i don't need to prove and did improve did improve i do those circumstances i could not even be interviewed it was told that she would never be interviewed under those circumstances i would think given the testimony of those individuals who were mrs that he said she's not disqualified because she's she's a solid contributor or even socketed you might ask me consider those people that's what she said she wasn't terminated for performance actually she was permitted beyond her performance and i think that rises to the level where it creates a legitimate question of fact for the jury to decide whether or not the reason that they're giving that it was ok to explain why it goes beyond her performance goes past her performance because i think any reasonable person can review the facts of this case and reviewing the performance evaluations of miss brown which suggests here's an employee who's here for nine years who did a good job for nine years who had s criticism as you would expect a performance evaluation but if you look at overall overall i mean this is what judge tardo did it i could believe this that the argument he suggested he said well she was never read it outstanding as if that's the reason that she doesn't have to be considered number two he says well because the past he said she had problems with air travel here's an issue here's an issue the travel mr pitts he talks about was it's a temper of two thousand and fifty one her complaint was not that there was any missed meetings or best flights or missed cars her suggestion was there chris said her criticism was that miss brown should have given individual notice to all the participants of the meeting instead of sending a general thing to honors please the court employers making job decisions of course have the right to set standards criteria things that they find disqualifying are not disqualifying and one of those criteria that's used probably every day within the circuit within this country when hiring decisions or me or any decision promotions raises things like that is how does this person perform in their job job duties and here we have a situation where an employee was laid off and wanted to be rehired and of course the employers had the right to look at her past performance and make decisions and whether there was as your friend points out there was a lot of positive in those was pretext well your honor i would say that this court has consistently held that it's not the place of the court to act as a super personnel department and basically reweigh the decisions that were made there the questions here are two full one is it legitimate for an employer to look at the prior performance of this employee and decide whether they believe this person should be interviewed further the undisputed record and it is important point this out it was an inconsistent track record she was never outstanding in ten years of being a secretary she was either at the mid level of some of meets expectations solid or improvement requires and there were specific problems that the two independent reviewers because your honor i would those are two separate issues and i think that just as a matter of we can look at it from two is one as a matter of common sense i would posit that probably anybody who's ever hired anybody might say look this person isn't that bad a fire them but if i had to do it over again i wouldn't necessarily rehire them for the position and every court that has looked at this and we've cited several other circuit courts and district courts within this circuit that have said it is of course legitimate is a legitimate nondiscriminatory reason to consider implausible or not even facially implausible implausible enough that or jury should decide i believe under the mcdonnell douglas test your honor the question is if you've accepted that it's legitimate and it sounds like even the pla f ultimately agreed today that it's legitimate to look at perper formas the question is is that stated reason true or is it false and pretext for discrimination and here in the record there is nothing in the record to suggest that did not honestly believe that the problems that were apparent in mr brown's record her inconsistent performance and issues that are frankly kind of critical to a secretary's duties when they're looking at this cold they're hiring for a new position there's no evidence that that's not actually what they believed and if they were legitimately allowed to look at this and they actually believed it then there is no pretext that's that's the test or need to be some evidence that that was not the honestly held belief and i a question that was asked of other applicants at their interviews but we've pointed out that that is not that would not even be direct evidence if it was a statement that was made to miss brown this court has held and we say this in the brief that absenteeism is a legitimate concern this co guess your opposing counsel to argument is that playing simply wasn't permitted to apply a better way to stated this her application was not looked at or pained or evaluated and the reason taken into account circumstantial evidence of the plaintiff's own testimony and whatever evidence is available in the record that the reason was h arguable case or they would be disputed material facts that could go to the jury if if if that that appeared on the surface to be the case well two points here one that's the argument that was made is not accurate she was her applications were considered miss hoyo remember she was applying for other secretarial positions so and they were on a relatively short time frame so when this whole they looked at her performance reviews and saw these issues that she thought was problematic for some applying for a secretary for executive secretaries or sector positions she found these to be disqualifying that she didn't want to move forward and all of the positions that are at issue here were secretarial positions so of course she's going to make the same decision but they were  considered and i nd person looked at was the recruiter for another position independently can do the same conclusion so i don't agree and i don't think the record supports the notion that they just didn't consider her application they did but the same problems the three prior performance reviews were were issued a nd this is not a direct evidence case miss mcgonigle who my colleague believes is the key to the case she was not the person who made these decisions there is one not disclosing the openings that t e ok a couple things on that your st i think it's a point that we've made this is a discourse held repeatedly that a party that does not actually raise an argument in their argument section  brief waves that there's been no argument in the brief on this issue so one should be waived that nd it's incorrect for a couple of reasons firstly was there's the three positions that we're talking about let's discuss those the st one was this german who actually was hired before plaintiff was even laid off before plaintiffs even the position was even going to be eliminated if you remember the sequence here mr paskey who is the vice president leaves in december the decisions made early january not to replace her but instead to consolidate that with the audit position in germany and so in january it was decided well this will pass he's gone she's not being replaced so we're going to have to let miss brown go the st position was already filled before that even happened so that was not an open position the nd position she did bring it up at the interview and she was told that she could apply for the job and she didn't apply for the job for over a month and a half and let's talk about this policy issue because i think you know to the extent it's not here and i think judge tarnal recognizes there is no express policy that says if there is an open position you have to transfer someone about to be laid off no questions asked no competitive hiring they just get it any warm body can fill that slot that is there is no policy that says that plaintiff is trying to him infer this policy from a flow chart that's used by h r uprooting and a policy that states when and when you do not have to post a age opposition hotline and this has held in these policy cases one in the roswell case this was actually at issue there was a policy and the employer said i interpret it this way and under this interpretation of the policy plan it gets laid off the plan it came to the court said well no if you read the policy my way i should have been the one laid off you should of went off somebody else and this court found it important but the plane of had actually made a record to show that at least some people in the company had actually agreed that the policy was as the plaintiff had stated there is no record here no argument here that anybody believed that plant was automatically entitled to a transfer or no questions asked there's been no testimony by the witnesses think she wasn't considered because of her disability and the taking of their family your honor on the policy question that absolutely was the argument raised below and i agree that it has been raised here it was raised by  praise it so that's why i'm addressing it but i would agree with if it were raised in this remember and and don't you think i do believe it's been abandoned but i was asked the question your honor so i want to answer that but no i don't believe that there's any evidence that this is a policy and there's certainly no evidence that the decision makers or mcgonagall or misfires that he understood this to be a policy and knowingly disregarded it such that you could show that they're not transferring her to these positions was false and pretext for discrimination so  i would just isn't the issue whether there's enough evidence in the record even if circumstantial and it would have to be i suppose mostly circumstantial since this is not a case of legend direct  the decision not to consider her for hire or rehire isn't there really the issue here i believe the only issue that's really been preserved in the plans briefs is that question and comes down to really the question is is it legitimate for these employers to look at the past performance or not that was expressly the argument that was made in the opening appellate brief that it's just not legitimate as a matter of law to consider prior performance or that's that's not correct and we will he's not saying that this morning he's not saying that this morning but if you look again at his nd argument it's basically the same thing he's saying there's pretax because it's just so inherently unbelievable that they could've relied on her prior performance issues because she had good reviews as well and again that's just really going to would have access to that but the testimony is that the recruiters do not have access to that or any of the other affirmative action about the decision makers did they work in the same building i don't know if the record shows that they were in the same building but they certainly testified and there's been nothing to the contrary other than just speculation that they had met her before they had they testified that they were not aware of her disability certainly weren't aware for a family leave because that was not these were these were recruiters these were this is not the h r manager these two  you know they were they didn't they to they would not have had access in this case to the disability forms or the other affirmative action forms that i regard because of federal contractors declaration that he did have access but didn't  acting in her role as an h r manager she would have she said she did not access in this case because she was acting in that he should have access she could have access them but she did not hear but again that was the record that log or whatever would there be a record or she don't believe that shows when when somebody would have access to system or looked at a paper file i don't think that's what that form is that's the open access system which is the electronic recruiting system form but again  so that's an alternative but i don't think we have to go there i think that this can be resolved on three key points not just then with these pretty three key points one it is undisputed that miss brown did in fact have a mixed inconsistent performance record and did have specific absent any questions i'll try to keep it very brief you and i think that the course focused on the issue here is the question is simply whether or not the defendant relied soley on performance or relied on other factors in their decision not to even interview  open positions for forty don't positions anymore she applied for more after that when it was never ever considered for any of those positions after twelve years with the company and if you look at her performance evaluations are and there are a lot of positives and overall performance is solid contributor under those circumstances where she was a terminated for performance she was named considered for terminations miss the pats he said it never crossed her mind to terminate her because of performance she was pointing out as she are here ruled that we had established a private face a case for all of the elements of all of the claims that we had made what he found simply was that with regard to the retaliation discrimination claims that there was not enough evidence to show that there was a pretext i would suggest to the court that employers under these circumstances where they have an opportunity to get rid of an employee who may be a decent performer but creates other issues because their god twelve weeks out of the year or have been gone for twelve weeks and takes advantage of the life she had meetings with ms hoyt where she discussed performance and she had a specific need with this is that he were missed is that he testified that mcconnell told her she would have concerns about her under those circumstances i would suggest that there's certainly enough evidence to go to a jury so that they can make a determination as to what the real motivation was for the terminations case as a refusal to hire this case unless there are questions i think the court thank you very much and