legitimate discriminatory reason without offering any testimonial evidence in support of its proffered reason in other words what does it mean to articulate a legitimate not discriminatory reason in this context so i think it's articulate that reason somebody from the employer has to testify in some form or another as to what the reason was or the summary judgment stage of the testimony will be maybe deposition on the employer's side and so when the employer stakes out a position in its brief to this court that the reason ms tyree was unable to move along with the creative walker of research and development was because the edited s o w going from wang to your client and then your client never responding that's what the is it needed to so an attempt in her own words to further along the process the reason she was seeking to work with someone other than dr wang was because she believed he was the source of the discriminatory animists so she wanted to work with someone else ok but the idea that the employer just sends an e mail doesn't get every lie to it with the employee is undertaking sure unary efforts through the office and so forth in order to get the crater moving along i beg the question why didn't someone else step in to make a response follow up with her the idea that that is a definitive moment a non response to e mail that she definitively has walked away from the process i don't think is is the only i can understand why that conclusion might be available but that is certainly not the only conclusion that's there and went on summary judgment all inferences have to be taken in the favor of the nonmoving part the fact that the inference is possible that you're driving doesn't mean that the court should should should drive it or inference where there's available so you're saying then the discriminatory yappers that after she asked to remove wang and they didn't wang should have reached out to her again and said are you going to get back to me the employer should of whether it was for doctor  credit because the process didn't continue right i don't know that i agree so then we need to look at why the process and that's why i think coming back but it seems your client essentially admitted that the reason the process stopped was she never got that she did she never  well i think it goes back that without knowing what their state of legitimate reason was there's nothing to rebut you know the stages of burden shifting are that when the employer does proffer that evidence there's a reference later in the brief but there's no framing that that's the issue i mean i think that it's important that at the district court level the mcdonnell douglas framework issues and in fact the supreme court has said that because the purpose is to narrow the inquiry so i don't think it's enough for an employer to come to the district court and say we didn't discriminate and here's a whole lot of facts about the case that seem to show that we didn't discriminate without saying here's why the things she's complaining about happened that's in our view not enough we also don't think that it's a reasonable inference for it to to jump to the conclusion that not responding to email is is so for example to provide any feedback on it to say she would even type in changes to it interesting and i think our difference is that the suggestion in your question is that because she didn't reply to that e mail that discriminatory but in fact she was believing that that was the process to continue moreover the fact that she if we take the employer's proffered reason to be she dropped out the fact that she went to the e office and at that point that the employer stops communicating with her beyond this process that raises an inference of retaliation now i'm not arguing that there's a retaliation claim in the case but if a jury could conclude that the reason the employer dropped out of the process would be for retaliatory reasons that is in contradiction to the employer's stated reason that the reason she dropped out was false and what if the jury can believe there was a different reason the evidence of discrimination has to be and has to be understood from the findings from from the ability of the fact finder to find pretext there is no direct evidence of discrimination it's not that kind of case this is a circumstantial evidence case so i can't with the circumstantial evidence is that the employer has said she dropped out and that there is a chance that would allow a jury to say no she didn't because the employee was trying to she was doing the best she could to get that thing in place because it was so important what right did she have to insist that wang be replaced he done all this work he'd been the one assigned in the beginning he took this how what right did she ha insist that they replace him with someone i mean normally in a workplace of someone goes in and says i want my boy boss replaced and the employer says no and the employee doesn't communicate with the boss anymore that's kind of yes i think a i guess i can't give you more than that she is that there is circumstantial evidence that she did something that there's evidence that shows it wasn't she who dropped out so what right is it of her to ask for a new supervisor well i think it's a right under the statute you know the employer rights yet doesn't have to jump to her attention to see to her demands but certainly she has the right to demand it in the right to continue to engage further down the line if her requests are granted which is what she him and give some feedback on his he given an s w to her i have a lot of work and i don't want to substantial differences i'm really having difficulty understanding why should we get back and say and that was the i don't know but i understand your point that the record is spent so that the summary judgment record does not include a lot of facts the audit trail of e mails between various individuals so we don't i don't know why she didn't go i understand that you don't have anything to offer on that particular point the record is created throughout the summary judgment process the fitness of the record started with the employer you know putting its case forward with no testimony and only predominantly honor your honors there please the carcassi electors for the secretary of transportation this case is about a graduate student who wanted confidential research data for her master's thesis and she wanted it from a federal lab that had this confidential research and to research scientists try to help her get access to that data so she could work on her master's thesis through this unusual tool called a cradle and when the plague was recruited by  words asters that is an allegation that she made and so at the end of the internship which again she knew that that could be the end of it she said well my employment has ended but has my research ended too because i need that from i it to graduate and dr geier and dr wang who had no obligation to help her get access to this confidential data try to help her get access through this credo through this unusual tool but when the one that's true and she now is that abandonment well she could have she asked for a different type person from doctor away and three hundred thousand dollars and the pope you center said no and the fact that they could you've even listed him as the technical contact at the focus on or listed on your master's thesis he's the person now she didn't like that response and i understand it so the problem i have with this re and certainly it's her problem is that the record this is then but if hypothetically an employee is the victim of discrimination by a supervisor what is that person to do except request a different supervisor well one thing that one can do is to file an e o complaint with and do it and keep on working you keep on working you can either resign or you can keep on working  you resign and then you attack your resignation as a result of the discrimination you have to prove constructive discharge very difficult but people do file complaints i'm unhappy about this i'm going to allege a scrum nation but i'm going to keep on giving a lot this is a hybrid situation because it's not true employment benefits she was trying to attain was the research that she had specified that she needed in order to complete her these this and so continuing at least according to her allegation she couldn't continue to work as you're suggesting because she couldn't get answers to the data at least according to her allegation but the suggestion that dr wang made about the artificial data as she puts it it was it  would have been writing a completely new these is different and apart from the one that she was actually working on but so to answer is no your honor i would disagree specially disagree with the assertion that she couldn't keep working which she could have by working i mean she could have said ok they turned down my request and solution in the process i'm going to keep going with that complaint i'm going to now file administrative complaint and work through the process at the same time i'm going to get back to  dr wang and keep these negotiations going up because i want that that she could have said to herself i'm so fed up with dr wang i'm going to keep pursuing my discrimination claim which she did and i'm going to choose a different master's thesis topic feeling but we know their position that well yes but it's not supported by the evidence when she finished her employment and she says the evidence this of course is that is the which considers an extraordinary too late in the development of the that's true but there's no evidence supporting that either the only thing that we had you got no discovery so we don't know you know she did get discovery on her i was trial counsel i told you only that she got limited discovery actually that's not quite right your honor she chose not to take any depositions i took only one deposition and that was of miss tyree she served me with four request for documents and two sets of interactive tori's and she was unhappy with some of my responses and therefore filed a motion to compel her to a bell denied that  but she chose not to take any depositions she did request documents i gave them to her she has all the i produce all of the e mails and i produced she wanted for example information on how long does it take to negotiate a creator and we produce the documents showing that the two creators that the hopi center had entered into in the last six or seven years took in one case six months to complete the state of work and in another case i believe it was over three years longer than the amount of time it took here before the negotiations start she then wanted create a information statement of the statement of work information relating to any contract that the volpi center had ever and entered into so not create a related statement of work relating to any type of contract you could think of and i objected and i said no this is a created case and judge without agreed so we did have back and forth mystery is a very intelligent woman she you know she did proceed pro se but she also litigated this case you didn't just sit on her hands so what do you think there's missing from your case he affidavit from your client saying we stopped working on it because she didn't get back to us and something like that some statement it's not it's simply not required the argument is novel this or any court as far as i know has ever held that that is required our burden to articulate a lawful reason for the decision is minimal as this court has said and it doesn't have to be an affidavit or a deposition i mean think of a situation where it is them well for example your honor if somebody got a translation letter and said you were here by terminated and forth and she's the one who abandoned the negotiations that's the reason that's the fact we've never we've never deviated from that that's what the evidence has always shown again she could have pursued her discrimination claim and continue  chose not to it was her choice so we met that minimal burden and the the e mails are the at the supporting evidence and then she has to come back and show you know my brother said all she has to show is the prime official case that is not true it is true that this court has said in unusual cases when the prime official case combined with evidence just a pretext is particularly strong so that for example the explanation by the employer is inherently incredible no way you can believe it that could be enough from which a jury could say and we infer the real reason was discrimination that is not this case in this case the evidence of pretext there isn't any so you really need both evidence of pretext and evidence of discrimination and as just for a way of pointed out there isn't any evidence of discrimination no reasonable jury could find that to research scientist dr guy or dr wang who went out of their way to try to help her after her employment head of the hopi center would be in favor of this you mean the documents are right there showing he's trying to promote it and then the other person the less discriminators dr wang he's writing back and forth with her saying here's a suggestion what do you think she doesn't like the suggestions that she doesn't want to type them into the s o w that's not how could any reasonable jury find that those two men discriminated against her when they're the ones who try to help her and the only evidence that she articulated when i asked her deposition evidence of discrimination at a meeting and someone said his baby is sick and someone else supposedly said where is his wife the second one was that dr geier had given her some negative feedback on some work she had done the third one was that supposedly he had compared her to two male employees who she said had after those things happened her employment and her internship ended and then dr she says oh well shoot i've lost my employment but i've also lost my master's thesis and dr geier goes out of his way to try to help her and says let's see if we can do a geier and dr wade trying to help her and then it ends because she gets frustrated no reasonable jury could conclude from that from that evidence that the real reason that the created didn't happen was her gender or her race or national origin the second that was the first basis on which that was the basis excuse me in which there's a bell of entered summary judgment but there are two other bases that we articulated and of course this court is free to affirm summary judgment on any basis apparent on the record the second argument is that what she was university and the whole the center was going to be an agreement with her through which ideally the confidential wait that i would have been made accessible to dublin people and she could have access to it to work on her master's thesis that's an academic benefit she wouldn't have got the salary she wouldn't gotten when it benefits the simply an educational benefit not actionable under title seven and then the third reason that we've articulated is that the adverse action in this case was simply too speculative she says you discriminated against me because this statement of work to go she asians ended and so we didn't have a creator ok let's even assume that that that that was true now you have to show that if the statement of work to go she actions had continued  credo would have been signed and approved by ms mcbride who would have written it by the director of the bowlby center by w p r o right and by the director of the reader the research and innovative technology administration in washington d c part of department transportation next you have to assume that now and then we would agree if the crater that happened she would have had access to that data to do her master's thesis next you have to conclude that she would have actually written and completed her master's thesis but then she did have a shot  that that she would have completed her thesis and that she would have graduated and there it's relevant that ten years later she still hasn't at that point now you sound like you just arguing the quantum of damages not really it has to be the harm has to be tangible can't be it can't be are not tangible but it can't be speculative and we've cited cases in our grief to that to that point and here i think there are too many layers of speculation if you hadn't terminated the statement of work of oceans i would have had a creator if i had a creator was a statement of work should not be saved take that long but a statement of work is a precursor to different types of contracts right a crate is why she was asking for the different types of pantry well right but we're talking here about a crate so there is no evidence that a statement of work or that five months was an unusually long period and she was trying to figure out why was why i was taking so long to get a statement of what proposal which boarding to group was or shouldn't take that long and according to your client i suppose it takes as long as it takes but she never if there's no evidence that anyone said the statement of work for a creator ought to take less time except for advice no he said a statement of work take a lot of vetting yes that yes absolutely honored she said look she kept getting back to ms tyree saying look this takes time you guys got to agree on this once i get it i then have to draft a creator there's going to be vetting it's a long process thank you very much