good morning this case as to central issues one undersell attacks when nine movements present evidence  that relates to material facts it needs to be considered and i don't believe in this case either the lower court or the appellee as considered direct evidence so the but they or the district court said it was free of an illegal motive the district court said the action was free of an illegal mode if the district court addressed that it or not i know i don't believe it discus all i thought the district court said when the district court was discussing what it had held on the challenge to employment out action said each action was free from an illegal motive and i'm wrong about that i don't i don't i don't believe that the the court did that i don't believe it analyzed to district court found you said the district court didn't address it the district court addressed it may not have addressed it with the analysis you would have preferred here's the problem i have about this the secretary argued the district court had analyzed bab's test in retaliation claimed in our age and didn't gender discrimination claims and it related to the same actions all of them relate to the same actions about the employer and argued that the court noted that it's retaliation analysis which it took up first and already addressed each of the employment actions and demonstrated how each action was free of an illegal motive end of quote you responded to that by saying that's not true the district court didn't do that you can search through the whole record and you won't find the phrase free of an illegal motive  and what the problem i have with that council is what the district court actually said and i searched the record is free from a legal motive it's not a viable oct argument say the district court never said it was free of an illegal motive when the district court said it was free from an illegal motive your honor may i replied by saying that that's why sound a prime case of retail you don't take it away from what you said in your brief which i am asking you about and which i found it extremely unhelpful and a waste of the court's time when they argue one thing you say no the district court did not say free of an illegal motive and then we look through the whole record and we find what the district court said was free from an illegal motive that's not good  to perform d s m but the problem was dr williams was told that there was one way pharmacies way for d s m to be done and i thought it was i thought she was offered another position where she could do d s m and she said no this is my life this is what i've chosen to do i don't want to do that they're not she wasn't offered another position so that every time when she knew that they were going to take away d s m from cheap from the geriatrics she was you know but if you're looking at why they did it why they took the same away from actrix if they're doing it to get rid of her they don't offer her another position in which she can achieve the assam well as it makes women it they offered her another position in  she was already doing d s m she thought she would continue no one told her some not criticising what she thought and did i'm saying it doesn't make sense for an employer who wants to get rid of somebody but taking d s m eligibility effectively out of jury actrix to offer her another position where she could have achieved sam it doesn't make sense your honor if you're referring to the the so called june twenty twelve offer to go to another position right she was already doing g s m at that time and no he end and that may explain why she refused  but it doesn't explain to me why the employer would have offered her another position where she could have had the sam and where it knew she could have had the assam if it didn't want her to have the assam well did you did you also notice that just that justice who was the boss of the person that supposedly offered that said there was never a position available that could have been offered in june of tw testified to that the the the bottom line is that they took away in advance go which she had had for since two thousand and nine in a position where she was needed to use in advance scope and she was doing more than twenty five percent of her work involved involved d s m and that position was taken away from her in a very unusual way she wasn't allowed to be in the negotiations the very next day they started the process to take it away the person in charge of advanced scope said no that's not the case the disgruntled employees that we need to consider as the possible ones who sent that message who are you going to cite give me a list of the people who are happiest who work here will focus on them and say which one of them is the disgruntled employee that doesn't make any sense counsel well your honor i think when people express a willingness to have people targeted because the engage in targeted to determine if they sent a disgruntled employee message you got to focus on disgruntled employees i mean it's like somebody sent a message i have been discriminated against because i'm african american if you were trying to find out who felt like they had been discriminated against and ask them the source in arjen of that believe you wouldn't focus on white employees your honor months your argument which i don't hear or reply to my response my that the board was told to target her i believe that what's logical is something that a jury in this case should decide i believe that what people ought to even if to a district court and to one of the judges counsel we haven't talked about this case and i don't know what they feel but it feels to me like no reasonable could find that that is a logical well i think when they also know that these people falsely stated when they learned of the iau activity in a declaration saying it was in may of tw discussing e o activity including in relation to a position that they are was applying for they also it myriad wilson admitted that he perceived her to be involved in e e o activity going back to twenty twelve and in this in just about the targeting aspect is it true my notes show that twenty six employees were questioned about this e mail is that right it just doesn't sound like targeting to twenty six sounds like well i don't think all twenty six were are questioned as targets the only people that i saw identified in the testimony of the supervisors were people involved in e e o activity is far is twenty six witnesses there is no evidence that that all of them were were looked at as targets when you do an investigation have been a former federal prosecutor you talk to lots of witnesses to see who may have heard somebody say something or or do something there so having many witnesses is looking into the two to the case and in it i find it difficult that supervisors can make false statements in a declaration made for litigation have a iby testimony that expresses a targeting desire based on e e o activity that has e mails th and dr williams testimony clearly contradicts the reason the court said that the legitimate business reason that the court gave for finding you read his testimony which i quoted extensively in the reply brief then it is clear that dr williams felt in us his proctor hospital way they at pharmacy had created the need to answer you run and over but i'm going for ask you one other thing because it looks to me like it's i can't square something you said another thing you said in the brief what's in the record question you also believe that having a resident she should be required to be a clinical pharmacist specialist answer i'm not comfortable with you putting words in my mouth based on what i believe what exactly do you want me to answer the question that's what i want you to answer what you believe you believe that it should be required that someone have a residency in order to be a clinical pharmacist specialist correct answer no that sounds directly contrary to what you clinical pharmacist specialist correct answer no your honor he left open the ninety nine percent of the people that were selected for clinical pharmacy specialists and during that testimony are ninety all the people selected had residency ninety nine percent of the people who do a residency are right out of school that that said he said ninety nine percent of the group at the medical center yes but let me tell you this you didn't say that in your brief counsel when you said he testified he wanted people who had residency for all the positions he testified directly no i've never seen a brief with more statements that when i look closely at the record aren't squared with the record he wanted it do you want it should be no i have a problem with that and i just want to you know we'll hear now from  it's clear that the court considered all the evidence that the secretary brought to its attention in summary judgment motion all the evidence that that brought to the court's attention in its response and conducted its own independent view of the record and clearly  page thirty eight the reference that the court has been discussing the court clearly made the finding that made the determination that it should challenge employment action had been free of an illegal motive that mean that you're not going to die in the ditch applying the mcdonnell douglas but for pretext analysis and that you effectively concede that we should be applying the motivating factor analysis but that you win under that analysis i think to a not in a situation where you've got a title seven retaliation claim or an eighty eight claim of any kind then you're going to be applying but for even on the public sector side where the statutes read very differently well no i think i think i think that there are differences on the public sector side but i think the difference is in the statutory language that that mr magri is referring to really don't get him to to where he wants to be on that point if if your honor looks at the statutes he seizing on differences between the public sector in the private sector provisions not only in the eighty's but also in the title seven public sector provisions really the argument that she's making is inconsistent with the supreme court's decision in gross and that's been the precise language of the statutes the private sector provision in the a d a s states that it shall be unlawful for an employer to discriminate because of an employee's agent to retaliate  employee has engaged in protected activity but the portions of the a d n a and title seven that apply to federal employees state that employees shall be free from any discrimination based on a protected characteristic now in gross which i cite in the secretary's brief the supreme court held that the a d a s private sector provision which prohibits discrimination because of an employee's age is governed by a but for test and reaching that holding the court explained that the phrase based on  exactly the same meaning as the phrase because of so under gross's logic the federal sector provisions in the a d n title seven which contain the equivalent phrase based on should be governed by the same but for test you don't think the free from any discrimination gloss that comes before based on broadens the reach of the stat you know i think i think that that really is not the operative language in terms of interpret in the two statutes and i think the supreme court the matter which the supreme court focused on because of and based on in gross confirms that and i think that really it may just flow from a quirk in the way congress wrote the two statutes one statute is sort of phrased as a positive command and the other is sort of phrased as a negative prohibition and as a result the free from seems to take on a different role in the phrases but if you step back and look at the fact that in either case it's describing the conduct that's predicted the operative language particularly in light of the logic and reasoning of the supreme court and gross is really the based on language not the free from language just seems to me that on the private sector side where it just says because of it means unitary all of it because of here we have free from any discrimination based on that seems to me like you're sort of parceling things out and none of these individual threads if you will can be based on that to me does sound like motivating factors a lot more than unitary because of it's certainly injects a question into the statutory analysis that wouldn't otherwise exist but i think if you apply the analysis engross the logic and gross the phrases that the of course focusing on in gross and just and just the overall assessment of what the statutes are trying to accomplish is trying to articulate the things that are that are prohibited the operative language really does become based on rather than free from i do think it comes from the fact that as i mentioned congress has sort of structured the statute a little bit differently in terms of appropriate approach a positive prescription and they get it command in a way that really isn't necessarily intended to change the meaning of the phrase but i think so so yes i think i have arguments and i would disagree with bab to the extent that she is screaming that the but for causation standard doesn't apply to title seven retaliation in title seven  eight claim but really my fundamental position on that is that the court really doesn't even need to get there for some of the reasons that judge carnes was discussing because really what happened here is the court looked at all the evidence and concluded biggest failure is to is to present evidence on which a reasonable and rational jury could could determine that the adverse actions in question were motivated by discriminatory or retaliate tory animists in other words she fills in your view on the pretext issue yes but of course and i led the way into that but it really doesn't the fact that the district court and lost is is persuaded  certainly we owe no deference to the novo determination that we've got to make about whether it was a correct conclusion certainly sir that's the standard of review and this court will obviously take its own look at the record on that point but actions were motivated by discriminatory and retaliatory animists and then it went through in much more detail and analysis of each particular challenge action as to why it was reaching that conclusion another important thing that i think  feeds into the notion that no rational jury on this record could could you can conclude that there was a rash and discriminatory a retaliatory animist a related point and equally fundamental point is that when this case arose three different things were going on in the v a it was implementing a nationwide team based approach to patient care that made pharmacists who spent at least twenty five percent of their time on it practicing in advance scopes to be eligible to be promoted the v a hospital where bad work was trying to figure out how to implement that nationwide program and the managers in the geriatric and pharmacy departments at bob's hospital were negotiating a new service agreement and more importantly adding some disagreements about the fundamental philosophical role that a pharmacist should play in the geriatric clinic under the new nationwide program and in light of the unique needs of geria patients short managers expressed different views about what the role of pharmacists ought to be in this press different reviews about how the pharmacists i'm sorry about how the nationwide program should be implemented implemented and that led to a lot of different changes in staffing and at the v a but really all of those larger institutional concerns i'm sorry i couldn't hear what you said if we were grading the district court's papers we couldn't give it an a plus because of the lying we did about the inquiry is not who's the better candidate for the position but rather where the discrepancy is so apparent as diverse we jump off the page and slap you in the face the supreme court slapped us in the face in ash and told us that was not very helpful the visual image i thought it was a great visual image and i don't think i wrote that particular ash but anyway they are supreme and we have to quit using that image well sure if if this court is tallying up the scoresheet that would certainly be the factor that cited  you in the face standard would certainly be something that it arguably ought not to have done but it also cited the correct standard the reasonable employer standard and if you look at what the court ultimately decided what it decided certainly is consistent with if not directly applying the correct reasonable employer standard so looking back at the institutional concerns that i was talking about a minute ago for this court determined that the district court should not have granted summary judgment to the secretary it would have to conclude that a reasonable  jury could have found that when the v a was addressing those larger institutional concerns management's desire to discriminate or retaliate against bob sort of became the tail that was wagging the dog on all those larger institutional concerns that also would have to conclude that management but its desire to discriminate retaliate against babb ahead of the needs of patients because many of the decisions that it was making whether it was in the context of a larger nationwide program or in the context of any particular decision about who should be doing what job and when really that that boils down to the interest of patients at the bottom the questions are if i'm hung up on the proper statutory analysis here the test under the statute let's assume that i think as a matter of first principles that motivating factor is the proper analysis on the public sector side what do you think and i'll ask your opponent when he stands back up as well what do we do  with this is the new judge asking the question what do we do with our opinion in what's it called trask where we seem to apply a but for standard in a public sector lawsuit but without re really any real recognition of the different language in the two statutes i mean does trask nonetheless control our decision about the proper test was certainly trask is the only published the senior that i the decision that i was able to find that does that the court has done that in a number of other unpublished decisions as well i believe that that issue is an issue that was raised for the first time in the reply brief in the trask case so although we argue  that trask is controlling authority and it certainly should inform this court's judgment i think in terms of its analysis and its and its pure holding it may not well get there in terms of it being a controlling authority in that respect to earth simming that an overlooked reason our argument not made undermines  right no and that's why i think i acknowledge that it may well not be may not be binding but i think ultimately at the end of the day you really still have to in this particular case because the record supports the district court's conclusion that the challenged decisions were entirely free of any discriminatory or retaliatory animists any discussion of that issue and that argument by bad really becomes an academic question that really has been presented this case in the court doesn't need to get there the same is true of the argument on the the fact that the masseur but for standard of causation should apply to the title seven retaliation in eighty eight claims that fundamental finding which again is fully supported by the record and really bad has not identified any evidence that would lead to look rational jury to conclude otherwise that makes it unnecessary to consider that that issue is well you know because even under the the last moment the less demanding motivating factor testing quick second he would still be entitled  just so i'm clear you don't have any regulations on the standard do you for some reason i recall from a prior case that there actually are regulations on the private sector side that sort of helped to flesh out the standard but there are no regulations on the public i don't know the answer to that question  false statements when they explained when they were aware of babs prior you know claim really all the evidence the bag is referring to there talks about some e mails in which managers are saying gee you know where we're that there's this unhappy group of people out there who think that that what we're doing is motivated by an unlawful discriminatory or retaliatory atomised we need to be careful the fact that if the manager is aware that an employer a group of employees feels a certain way or is is particularly sensitive to a particular issue and the fact that management might make an effort to tread carefully there that doesn't make the management's decisions whatever they certainly some temporal proximity because all these things were happening within roughly the same time period so it's kind of hard to know exactly what the temporal proximity is in any particular event unless you sort of tease it out and look at it individually because this was sort of a rolling situation where everything was tumbling over one another during this during this whole time period so the bottom line is i think you know the courts the district courts determination regarding the fact that no reasonable jury could have could have come to a conclusion that there was a animist is the key point in order to get get to the conclusion that that was wrong this court would really have to be second guessing in a way that it numerous decisions would make clear is not appropriate so i'm sorry i didn't ask you this is really a point of curiosity i'm almost afraid to ask but can you tell me what is i can not to the witnesses who testified about it explain their understanding of  it but i don't know what i thought the evidence from which a jury could infer that the maining was clear which was a cajun grandmother our cajun four grandmother oh my i was i was not aware of  the a factor they treated as a motivating factor standard applies to federal employees the m s p b which is the old civil service board with sometimes the side c e o cases and it factor they followed they they agreed with the d c circuits decision on that point and if we're going to read statutes in make laws based on statutes we have to do that here because it is two very different than two thousand and two thousand he three so let me just ask you this i mean i actually think that's the easy part of your argument the harder part of your argument is circling back to  judge carnes question about page thirty eight of the district court opinion which may well suggest that you lose even under my reading of the statute all right i strongly strongly disagree for the reason i started this argument there are numerous facts that has been presented in this case that show discriminatory intimacy none of those were analyzed the one key thing that i would like the court to look at when they're considering that argument is look at her finding that the plaintiff a stablished a prime aphasia case and then the very first despite reason she gives which is free from discrimination apparently which i don't believe she really analyzed it that way the is the williams reason you cannot read dr williams testimony in find that he did not want  both from the military in their age so you have to approach those things a little differently the approach that the pharmacy took here is actually contrary to the approach that the v a central office takes and but the but the main thing is that there williams wanted to continue with the bad doing the sam he just wanted her to be of able to consult with the physicians and some of the hard cases because she was really good at it in the what pharmacy was setting up was a way where she couldn't do it in they couldn't do it he wouldn't agree to that they told him it was all d nothing and as a result he said well in he ought they also told him when you look at that testimony they also told him that it would be bad for bab if they went and did it the way they did it the way he wanted to do it be in it with the theory there was that you wouldn't need a twenty five percent threshold of work in order to get it get the g s thirteen however the evidence is clearly in dispute on that issue and if you look at his testimony he's talking about given her three hours a day how could that not be twenty five percent but in any event that's not important there was a bunch of litigation about the twenty five percent three different efforts by the v a to show she wasn't getting it the first she shut down after discovery ended they gave us twelve hundred new pages of evidence which justice then argued showed she didn't need it she shot that down so justice in the reply belief i think it is but don't hold me to that judge darn it she did it at some point it but the in reality and i also think that mao mao is a term that was used in africa in relation to for certain if you look at up i think you'll find that it yes i understand but the thing is i didn't address that in this brief but but the fact of the better is i know that there's a more hostile meeting to that term in the but the the point here is you can't look at williams testimony and find any evidence to support a free from the terminations and that then affects all the other parts of her decision ok thank you appreciate it and what i think case under submission and you're now read