take a short break after the nd of the three cases all the normal rules apply even though we're in this strange context and want to thank all the counsel for them during the violation of the equal pay act title seven of the civil rights act the texas labor code and the family medical leave act as a threshold matter appellate inadvertently argued that its most compel was still pending at the time the motion for judgment was granted that was brief in the air and upon withdraws that argument and apologizing to the court for that mistake but that does not change the fundamental issue of the district court may not resolve issues of material fact frankly because of the intervening thanksgiving holiday the transcripts were not yet available additionally there was perhaps the most he deposition of david morgan that was agreed to by the parties to be taken outside of the discovery period to accommodate that was pending and for which the defendant had filed some motions a week or two prior to the summary judgment being granted but from what a complex perspective what i want to make clear on the record is that our motions to summary judgment was improperly granted in that there was a trove of information that could have been supplemented had we had a status conference or something to alert the new judge that these items were pending but again i  absolutely do not want to mislead the court and it did not file a fifty six motion to apprise the court of those pending depositions so what was the implication that you were not able to give to the district court that you wish you could have well some of those depositions that  latest time there or perhaps the most he deposition was the one that wasn't taken and that was d of david morgan who was the corporate senior level officer who was directly above the plaintiff and who throughout our case and throughout our briefing is focused on as the person that retaliated against her that to rail her promotion claim and to rail her claims for equal pay that deposition was scheduled for the st week of december in new york incorrect there have been depositions that were taken prior the week prior to the the summer just being granted one of wish perhaps two of which would have directly impacted the pay claim the deposition that was not taken would have impacted frankly all of claims because mr morgan was the key witness in the case and we had trouble securing his deposition because he was a party but what i'd like to focus on today your honor is what before the court because time and time and time again the court issued its ruling based upon resolving material issues of fact as to each of plato's claims and st i'd like to turn to the fact that this report aired in granting responsibility under similar working conditions and the claim it was paid less than her male compared under title seven we had to show that she was a member of protect us and was paid less for work requiring substantially the same responsibilities and as an equal pay act claim the district court ignored evidence of pay disparities across the omni hotel network focusing on the single establishment rule under the act that single establishment rule has exceptions such as one dollar pay decisions are made  was made at the corporate level and that was part of the decision making process she further tests that they testify that someone at the corporate office would have had to weigh in on that decision regarding those winds and the new vice president of food and beverage from the hotels devon burns testified that he personally was in ball at the corporate level in the hiring and promotion of food and beverage employees at various locations throughout the omni enterprise even going so far as to interview candidates these are material fact issues as of how seven the district court fails to separately analyze plaintiff's claims under title seven grouping it in with the equal pay act claim and that alone is reversible error but looking at what the facts were for or and how the district court didn't weigh title seven wrong they roughly granted summary judgment there by excluding to compare or is who did the exact same job in the exact same location as lindsay was walker's job aside from the fact that they all share the same job title of the district court did not know is that not only was it the same job title but it was at the same hotel chain at the same location in the same sit there could be no greater compar wrong or yes anywhere from thirteen percent to nineteen percent less when adjusted for time as to when each of those men were hi e had over a decade of experience with mary ott and had his own business but completely disregarded the fact that this linsley had over a decade of experience in the only food and beverage system itself where is the other candidate had no briefing and its briefing defendant said that pollard and walker may have had different duties they did not believe he how those differences how those duties were different and so played for light on the fact that again it was the same job title in the same location  however the district court disregarded that under the single establishment theory that only compares at the knees corpus cristi location could be waived here and they nor the fact that we provided evidence across the system nationally even looking at the on the location in corpus christi the court disregarded both mr pollard and mr walker salaries as the two prior predecessors to mr cornelius and that was that was error and should be reversed but that's not the only error that was committed by the district court they also erred in planes failure to promote claim ironically deciding that the plaintiff had abandoned her opportunity to seek a promotion but during the interview with the general manager of that location in houston where she was trying to be promoted she was told that she was not wholly for the property that she would not be hired that there were two other applicants that the g m was going to look at as opposed to her it was only after learning that  didn't offer she did not get an offer to the houston location you know does she get any offer no your honor not not to the to the not to the promotion that was sought that is an issue in this case which was to be the food and beverage director of the all of those acts occurred after her charge of discrimination was ripped open put on her desk left for her to see and every single retaliatory act that occurred after that point was clearly in violation of protected activity that the pla twenty eight tain which was the deadline in the current case management order the pilots brief also suggest that the discovery deadline was until november at night taking that's not true at the time we followed the summary judgments on the deadline discovery deadline was a couple m i think three or four months later it was later extended by agreement of the parties and approval of the court but at no time during and by the way the motions for summary judgment were foll did they ever attempt to follow any sort of motion under all fifty six dollars with the trial court to let them know that they thought there was discovery still in that would impact as a rigid rules moreover when the three there were three additional depositions taken they made no effort to advise the court that they thought the testimony was so how significant the summary judgments and in addition start when they granted summary judgment they directed us to follow attach any of this summary judgment evidence from these depositions any evidence from those depositions in in or sponsor that motion either and in so we in we don't believe it would have made a difference anyway of course certification in they referenced the hawkins affidavit in portions of depositions that were perhaps in their motion for class or question but not in their response to the mo and it's our view that is not part of the summary judgment record and we want to make a note of that let me turn to this issue of david morgan i spend a lot of time talking about alleged past behavior mr morgan but with regard to the promotion claim which is in their briefing where they attempt to draw a nexus between mr morgan her failure to take the promotion in houston our position is that his actions are alleged behavior is irrelevant because it is  undisputed that she withdrew her name from consideration you got the offer are if you let her go get offered a promotion yes here's what happened here's what the record shows  used yes here's what happened on cassette on august th after she had withdrawn her name barry songer and drove to corpus christi met with her in person encouraged her to put her name back in the hat for the promotion and assured her that the promotion was hers and she refused to do it she acknowledged in her deposition this isn't the summary judgment record she acknowledge because she didn't like the circumstances but if you think about it it's either one of two things either one her perceptions of what was said in the original meeting with the general manager barry sonder on august th were  wrong the comments that were attributed to morgan was that she was not qualified and they were they were gender neutral but either her perceptions were wrong and she should have never withdrawn her application if she wanted the job or the only other alternative was as th her in her complaint about how they are being went down and they gave a robust response and very sonder g m who makes the ultimate decision drove down to corpus christi and met with her personally and she refused t recollection of the record is that this the uncontroverted testimony from very sonder news is that he drove down and met with her and made it very clear to her that if she would resubmit her application she would get the job so first of all the the climate of equal pay act is somehow we should the court should consider multiple locations of the omni hotel chain which at the time that the summary judges were considered ami had forty dollars different hotels throughout the united states and north america in the summary judgment record is there divided into three groups of hotels core court properties resort properties which have golf courses resorts and cetera in the convention properties and there's substantial summary judgment evidence in the record that they're all very different in terms of food and beverage outlets revenue staffing geographic location and i'm mindful of the literal language of the equal pay act which which says that only in unusual circumstances would you consider more than one  that the appellant considered the houston job to be a promotion and that's a simple example of that in the records very clear from the testimony of joint rock child the chief human resources officer and others about the significant difference is that they clearly don't meet the burden to him there's no fact question that multiple properties should be consider a single establishment living we limit ourselves if let's say we limit ourselves to court as just for purposes of conversation is it the case that she was paid less than all of her male predecessor if she was paid as an nothing more than that they i mean under the e p a and under title seven the language of the statute in the regulations in the case law says that she has to show that her circumstances were nearly identical in that job titles and classifications are not enough and i take exception or disagree with counsel's position that just because they are at the same location that somehow is evidence of this i responsibilities i mean if you think about it in these in these equal  mean cases there are many cases where we're only dealing with an enterprise it only has one location and let's take the say you have made your position that is you don't need to present evidence  nearly identical circumstances in terms of skill training education experience and responsibilities so he was right but if you want to say for the sake of argument that they met a pro pollard walker in the evidence is a pundit lee clear as to why they would have paid differently those two individuals were paid different starting salaries and in the summary judgment record the evidence from joy rock you will have to pay differences among people with the same tile and at the same property in an it depends on the geographic location there at the same geographic location had twelve years of experience with mary ott you had his own business for forte and yours you had significant and in fact when he was hired he was hired as director of catering for the houston hotel so we think we more than articulated a  hospitality companies in the world mattered and as the is judge starr noted there's there's a law that you know the court is not going to substitute its business judgment for that  s with regard to the retaliation claims the we believe again the judge starr got that right that if you look at the evidence as judge starr did clearly the over the overwhelming summary judgement record documentary evidence and testimony shows that much of her perceptions and feelings that it was retaliation are unjustified and unsupported by the record and let me give the corps a couple of examples one of their big examples of retaliation is that her evaluation in two thousand sixteen was revised downward from a five to a thirty eight well the uncontroverted record is is that the reason she had a five is because at the time and the general manager steve keenan allowed his that they send out a directive saying no in order to have objective and sound evaluation we have to have real evaluation so you mr cain and you need to rebuild them in the uncontroverted evidence is is that the evaluations were done over for all of the executive committee members at the omni corpus christi and also for many of the managers and she was downgraded to a satisfactory evaluation clear record is that that was an error by ms gilbert with no showing of any animist she was mistaken about the terms of f m s why she corrected the mistake within ten rules and regulations regarding who can and who cannot take another one they allege is you know computer problems and she she comes back from referring to here's my testimony from from his loosely so if you if you knock out some of these big claims and then you're left with the yelling from steve kane and she recounts that  they stayed in their break that he says you've got to drop this thing i've asked the court to look very carefully at the side that they give to that because that is not in her testimony that's not anywhere in the testimony that she said that he said you got to drop this thing you know the inference would be that egypt is a crime that's not in her summary judgment on the testimony and by the way in her deposition she says you know i'm not exactly really sure what his what his words were and so she was very general in what she recounts about that so i think when you you didn't look at the retaliation claims of the as a all knocking out these these big ones they're clearly  from the record not related to the retaliation then she just has unfortunately you know some uncomfortable employment situations that don't rise to the level of the adverse employment actions and we cite the case law from the fist circuit about being treated rudely rudely with general hopefulness by their supervisors and employees about aggravating dispute is that in the same way that one would expect in a corporation like on you to receive a written job offer from the original application that didn't occur what they were asking was that she applied a nd time and that's what she declines occurred and whether or not that is credible evidence that she would have gotten the job because the fact that she did apply and she didn't get a job turning though to the retaliation point that counsel referred to a close argument there are important distinctions that the district court completely ignored we talked earlier about how the district court ignore the fact that her actual charge was placed on her desk for her to find prior to these are valid tory acts occurring changed after she came back from f m a lately and again it is a material fact issue as to whether that change was directed by court because as counsel argues well this is just an overall change to how we do performance reviews or was it tied to the fact that it was the day after she came back from f m l a leave her score was change from a two or three on her own performance review these are employment decisions and ultimate actions that would retaliate and under the will in ultimately under title seven and as to whether or not these issues as they were described were tell you tory again look to the record evidence that after she resigned and after she was constructively discharged but all of sudden those documents were available to her successor and in terms of whether or not this was an honest mistake by h r when they informed her that she could not take a family leave the fact that was corrected ten days later the fact that his opposing counsel that somebody who holds the single position of food and beverage director a property we're not talking about multiple servers or most of our tenders this was once so a position plaintiff put forth that all three of her predecessors at that exact position at that exact same property were all pay between thirteen and one thousand percent more than she was paid to do the same job of the same title at the same position and the court disregarded that and a jury must be allowed to consider that evidence when they are considering  the common theme that runs through this entire argument or and i appreciate the be chris's with which we're all looking at the records here but in each of plaintiff's three main causes of action failure to promote failure to provide equal pay