judgment the district court granted summary judgment on plaintiff's claims for both retaliation and race discrimination and set forth in the briefs we believe that there were a number of factual disputes that  were viewed in a light more favorable to the defendant than the plaintiff which is the way things are supposed to be not the way things are supposed summary judgment and for that reason i'm here this morning asking that this case the decision be reversed and remanded i would certainly want to answer all the questions that the court has but i'd like to focus on the retaliation claim and more particularly the trial court's decision that miss crawford did not engage in protective conduct that's the first element of the retaliation claim under title seven and under ohio state law the key event in this case in terms of the protected conduct was a conversation that miss crawford had with her general manager jay z torres in march of two thousand and fourteen in that conversation miss crawford accused mr torres directly of discriminating against in this crawford told mr torres that he was discriminating against mr shelton that she needed to stop harassing him miss crawford is african american mr shelton is african american mr could be argued that she she stuck up for her friend as they say well if she stuck up for her friend because he he was his time wasn't being fairly it wasn't being like a allocated fairly and the boss didn't seem to like him that much that's that's one way that the evidence could be viewed and the defendant can certainly argue that but the proper way to look at this case  certainly judgment in whether or not she engaged in protective conduct is to look at all of the surrounding facts and circumstances and what led up to that conversation in the record has evidence that miss crawford previously talked to mr to about favoritism toward hispanics and discrimination against african americans the record contains evidence that in those prior conversations mr torres is typical response was you're just sticking up for these people because you're black there's evidence in the record that african americans had come to point to to talk about time shaving not just mr shelton but other african americans there's evidence in the record that mr shelton had been kind of passed over for promotions in favor of hispanics when you look at all this evidence in context and you have an african american going to a hispanic boss talking about ill treatment toward another african american i would suggest that it's for the jury have to also make the tie so this wasn't a her objection to the treatment of shelton didn't affect her except the argument is that persuaded mr torres who apparently have an affection for her and cried when he discharged her that he was discharging her or treating her poorly in what way retaliating by firing her right ok so that's the i would say somewhat of a leap that we must make to associate her complaints on behalf of her friend who is the same race as she ok that it's judged that's a leap but there are there's inferences and circumstantial evidence that could cause a jury to say this was because of her complaint this she was terminated about ten days after and because we have to have the movement that be oh retaliating because mr torres fired her in retaliation because she directly accused him of discriminating against on races to show up because of his race in the end i think it in all these retaliation cases what the jury should be allowed to consider when i asked the court to consider is is there enough evidence for somebody like mr torres the decision maker to form a motive to retaliate because that's what it's all about were the circumstances enough that the that that the plan said something that was a pensive to the boss accused him of discrimination so that he wouldn't want to retaliate and i think there is certainly evidence in this case from the facts in the record that that's what happened here miss crawford was a pass toward another promotion shortly before she was let go she'd been promoted twice before that she received the achieves expectations evaluation regarding her crew in december of two thousand and thirteen shortly before she was let go everything was on a positive trajectory then she made this complaint directly to mr torres accused him of discrimination and she was let go for a very subjective reason your crew doesn't like working with you what does it mean so this is the argument about pretext we're moving into that but  have a complaint followed by a terminations for a very subjective reason that we put we include in this analysis the the overarching requirements  that mr torres strait up the restaurant and and discharge people who were not performing as the supervisor over him thought to be done there's there's certainly testimony from the defendant on that point on the other hand if you look closely in the record there's no testimony that anybody saw there their records aren't there about having been challenged before on performance mr torres wasn't living up to the headquarters concepts mr torrens was eventually fired because he had been given time and counselling to improve but i'm not sure how that relates to the point if there's no evidence that anybody went to mr torrens and said the plaintiff is a lousy performer fire her in fact sam grievous who the defendants rely on because mr torrens isn't around to talk acknowledged in his deposition that he never made that recommendation to to fire mr crawford thank you so again when you put on summary judgment review all the facts in light most favorable to the point if you put all the evidence together you don't just isolate certain facts there's evidence certainly from what you jury could conclude that mr torres retaliated against miss what do you say about your opponent says that the the affidavit seems pretty critical to your case the affidavit that your client put in and hopeless says that affidavit shouldn't even be considered because it directly contradicted your it never happened there is no war in the record or in her deposition when the defendant even asked a general question tell me about this conversation that's set forth in your complaint tell me about this conversation that's in your ego see charge you never asked  question i don't know why they can explain that to you but that's the critical conversation in this case and they chose not to ask a question in the law in the circuit is that in circumstances like that when there not a question a direct question about that conversation or particular issue the plaintiff can supplement the record and it's very proper to do so with a declaration it's just what we did and then on the related point  declaration was very consistent with what we complaint we didn't miss crawford didn't make something up this isn't like the read force of this serious case where the plaintiff had been deposed and asked questions and then just completely changed her testimony and brought something up this conversation was in the record for a long time it was in the complaint and defendant chose never to ask miss crawford about it there's nothing inconsistent about what was in the declaration in the bios to mean that if this was a complaint with respect to racial discrimination that the whole deposition would have would it not have failed to mention that at all especially with open ended question at the end there's an argument whether that question directly allowed her to let the let the employer know question about that in fact that we've cited the exact testimony in the question before what they said was the is there anything else you want to talk about in terms of that issue the question before about that issue was whether right now i represent calling mexican brown the plaintiff's lawsuit is premised on nothing more than her subjective belief that she was wrongfully terminated she failed to make fashion showing either retaliation or race discrimination she simply did not engage and protected activity as a matter of law and i would first disagree with plaintiff's c s position that the question is whether mr torres had a reason to retaliate against the plaintiff i think the question is whether the plaintiff made an overt charge of race discrimination because if she didn't then she didn't engage in protected activity and here the plain to testified in significant detail to exactly what she told mr torres about time shaving in the restaurant and all of that testimony she did not mention raise she did not use the word discrimination and in the magistr recommendation which was alternately adopted by the district court the magistrate described her testimony as markedly devoid of any claim of free space discrimination but she did put it in  you were discriminating against shelton you have to stop that you have to stop harassing him or she doesn't say you were discriminating against because of his race so the question is do we decide as a matter affidavit was inconsistent with the deposition tennis testimony and should be considered at all but even if the court considers those allegations are too vague as a matter of law a jury you must say so if i it so that in order to engage in protective conduct you have to stay can't just say you are discriminating against him he's black  words that a person needs to say but yes she would have had to connect her complaints of discrimination and harassment to a protected category isn't it sort of i mean i feel like when people speak about discrimination that is often the first thing that comes to mind is race discrimination because of the problem problem in our society and it's you know it's very much in the news it's probably the first thing people think about i race discrimination in other words if i if i say well i'm going to it is true that at the end of this court proceeding when we render judgment we will have maybe we'll have discriminated between the winner and the loser or the winner and loser we will have treated you differently based on the merits of your case but nobody would call that discrimination i mean it's a weird use of the word when we talk about discrimination we typically are often mean race right when i don't know facts surely there are countless ways that one can discriminate against another and many of them have nothing to do with whether a person exists and are protected category under title seven so it's discriminating there has to be done can't just be treating someone differently it has to be treating someone differently well the workplace of course there's a whole team in that store so are perhaps discriminating as among the employees shaving one's time versus another perhaps that discriminate against this person in this cubicle they get better treatment than i do that type of use of that term maybe sure and just i certainly wouldn't condone time shaving against any employee and it is against company policy as the plaintiffs noted to mr torres but the reason that mr torres could be changing time from one employee to another versus another may have absolutely nothing to do with race or any other protected category and that of course that's true no question about that but i guess i'm wondering whether as a you're asking us to say as a matter of law a plaintive can't make out a case for retaliation unless by simply saying the words discrimination they have to say the words race or sex or some other protected category we can't even for from circumstances that what mr torres here would have understood would have been race especially given his comment at the end where he says according to her which we have to take her facts are in judgment he says oh you're just sticking up for him because he's book so mr torres understood that that race was doing some work in this conversation sure so my first point would be yes the plaintiff has to connect her charge of discrimination to a protected category and i would note this court's recent decision in land the southern states cooperative where plaintive use the word discrimination in a very lengthy letter but failed to connect it back charge of discrimination to his protected category in that case it was a disability so i think that's what happened here  to be a charge of race discrimination and then she has to show that he understood that that's what she was saying but i don't know could it could in a jury infer from the fact that he says wait i'm not the discriminator you are your just sticking up for him because you're both black that he understood she was accusing him of race discrimination and he said wait it's not me it's you well to the extent that you're talking about knowledge the second  element maybe but to the first element that she absolutely has to get past to even get to the knowledge part is that she has to make the overt charge of discrimination and i think  to say i understand your position is she has to say the words race or because he's black or because you know some other protected category she doesn't say those words saying discrimination alone is not enough and maybe that's our case i mean i have to look at this plan versus southern states yes so i think that's that's an accurate summary and again i don't think there are any magic words that she needs to use but she does have to connect her her charges to a protected class and here that class would have been race and she just did not and she did not in her testimony about about the underlying facts of this if she did not in her affidavit that was submitted in response motion first summary judgment and to the extent there is the court gets to create didn't in her complaint did she use it in her complaint that would be a place for it i think that in her complaint she does again use the words discrimination don't i don't remember whether she did or not to be honest i did use the word race in her complaint that would that surprise no well i think your argument is no because she must support that right exactly because it's mr torres was eventually the decision maker and he in order to retaliate against someone you have to know we know with and and so just saying in the complaint would be insufficient and of course as the court is aware there's no need to get to a pretext analysis if the pla even a prima fashion showing but if the court does get to pretext and i think there are a couple of the complaint does target race discrimination that's her second by the time we got to to this court there was no dispute one way or the other that she was actually replaced by an african american woman so yes her claim comes in down two entirely and i compared her which we don't right by mr torres guarding her being too bossy and having attitude problems and things like that the plaintiff has claimed that that conversation did not happen but i would just note that chipotle is an employer and the plaintiff was an at will employee and for that reason she could have been fired for good reason or bad reason or no reason at all for racial discrimination not for race discrimination which she was not but there's no legal requirement that right employees or discipline them or anything like that  they could just decide one day that they don't want to employ her any more brave course that's of course that's true but but as church clay says there are forbidden reasons and in order to prove the forbidden reasons the jury allowed to make reasonable inferences from things that aren't there so in other words if you say well if your employer coworkers didn't like you and there's no evidence that that's true you know from prior disciplinary proceedings or testimony or something i mean can the jury infer that maybe that does come out of the clear blue sky well i think that a jury could not infer that that is not true because the plaintiff herself testified on a number of times that she had trouble getting the crewmembers to do it she said that the crew members she was looking down on them that the crew members were very unhappy when she was promoted that when she transferred from one store to the other store she had what she called relapses and communication problems so i think that would be very disingenuous for the plane to say that and that and the issue with crew members came out of the clear blue sky and again there's no legal requirement for to pull into moria lies those problems as an at will employer i would just ask the court to affirm the district court's decision in its entirety thank you thank  plaintiffs who is a female said words to the effect that i want to be paid the same as mr walker who is a man oh and that in addition to some other circumstances here was enough to put the employer on notice that the point of was complaining about sex discrimination in that case so the law on this circuit is established that you don't have to say the word race or sex in order to prove a prove that you engage in protected conduct and there similar case in ohio where we also alleges there's a violation cited in the brief it's called it's the ferguson case where a man said this woman is making me uncomfortable  he didn't say sexual harassment but based on all the circumstances the court said that was sufficient for him to have engaged in protective conduct so there is a law that supports very firmly our  case even in the as the decision which is a six circuit decision the plaintiff used the word hostile environment but he didn't say hostile based on my national origin even say hostile based on anything the court again looked at all the critical here in terms of what the employer or what he understood when he responds to a complaint of discrimination by saying you're only saying that because you're black to me that is sufficient evidence that would allow a jury to  find that he clearly understood that mr crawford was talking about race  finally there is no i'm not going to the write up is addressed in our briefs there was never a write up presented to mr crawford in the form of any kind of verbal counseling or written counseling or written after that is that the one about policy and i'm not sure that it's a bossy judge i'm not positive but there was a comment that in subsequent reviews she was rated meets expectations achieves exceeds expectations and was never written up for any kind of interactions with and in light of all the evidence in the record we would again especially request that this court reversed the decision of district court and allow us to go forward and try this case