will now proceed with argument in the sticky department of education lower court errored in connection with its dismissal summary judgment it connection with both retaliation and the nation as to the retaliation we believe that the court misconstrued its obligations under mcdon douglas is clear from the lower court's decision itself that the plaintiff made out a prime facia case at that point the burden of proof shifted to the defendants in that case in order to come forth with  retaliation here are you complete and is your client complaining about the terminations or about the placement in the eighty or poor or both because i would have asked in the a t r paul a lot of the arguments you're making about temporal proximity and things like that don't seem to be existing but let me i just want to try understanding correctly the universe of retaliation claims the answer is both in and i will if you can expound upon that right now in that the records of the plaintiff were expunged as a result of the realization that they made an error in terminating her originally they then put her in the eighty r which is clearly not a restoration of her rights but they said they had to under the agreement that they had that they were obligated to do so and i know you're going to tell me about mr people's testimony but it doesn't say what you think it says well i respectfully submit that there is certainly sufficient proof to have a question of fact as to whether the eighty are is sufficient as a as a restoration of the plaintiff's rights and frankly judge it defies common sense to say that the records should be expunged that the plaintiff is a teacher in good standing and then not restore her position the issue of whether they had to go into the a t r depended upon whether she was entitled to be restored to her position as opposed to being provided with something that is clearly less because it is common knowledge that what she was seeking was tenure which gods she was seeking tenure and the restoration of her position but then what yours is all right to go to the same school in the same classroom with the same students absolutely but that's not that's absolutely absolutely judge she was wrongfully terminated in fact even though there might be an agreement between the union in the d that you go to the a t o are as a result of d o e powers c when your position has been accessed or when you are the subject of a disciplinary proceeding there is no record that a stablish is or even sets forth evidence that under any circumstances when you are removed even warmly from your position that once you admit that you're wrong that you can never the less the person in the eighty are that eighty are is confined in it's in toasts who are assigned there to two categories of people you've been properly accessed under the education law and recall and you have been placed in there as a result of a disciplinary proceeding that's what people's actually says in that he believes that she was entitled to her position but she went to the a t r under some non existent agreement between her and d o a and that didn't happen as to the defendant obligations the evidence is pretty it's actually overwhelming that the plaintiffs evaluations were false proved by their own records because the complaining that she is being discriminated against in killing in connection with her performance she know she is tall she's asked right if she will extend the probationary period right she is asked she is never extend her probationary appointment she says i think i've been discriminated against by you doing that this is the nd time you want me extended after i've had  school to be observed for most of the time i know in correct she actually takes a leave of absence which is all theorized by her and in a classroom while she's only robson's right judge she is not observed for three years notwithstanding the fact that she has been in vigil for over two of those three years in fact as a civil rights of the principal wanting an opportunity to this is what was the reason for the stated reason he wants to have more time to evaluate since he's new and so during the time that he is there how many months is she in the school in the classroom she's there to one of the three years that he was there  never comes in to see her once in fact he doesn't come in to see her until after he makes a recommendation to the superintendent of schools to terminate her employment and at that point that he goes into her room for a very brief period and then writes and evaluation which is negative in a checklist as to every single point that over the three years before he had a value weighted her as satisfactory her but he had already told her then that it was there was a very high likelihood she was not getting tenure is that not correct well he told her because he said he wanted more time to evaluate her and her response was where have you been for the three years that i've been in this building she comes to back to work in january of two thousand and twelve after she was there all of  probation and is tall that if she doesn't agree she's going to be denied no you're on your i respectfully submit that's being misread he does not have the authority for fair weather does not have the authority to terminate employment all he says is that i'm going to make a recommendation to the superintendent of schools the superintendent of schools does not make a decision with regard to this issue until october two weeks after and this court has held repeatedly that it's only as a result of the decision by the final decision maker that's what is so frankly outrageous in this case all of the issues set forth by the as the basis for the reason of our terminations they all come from fair weather lloyd barry the superintendent of school who makes the final decision in this case she actually says on the record she didn't use any but below you spoke of fairweather it's only on appeal that you're focusing on miss lloyd barry is that not correct no no no your honor not all that well but that was that the the focus on fair weather has to do with the fact that he is the one who initially discriminates her against her by filing the false and backdated evaluation by making false statements about saying that she is out of that she is out of work for eleven days when there's a ten day threshold when in reality she's only had three to fifty three or four days by talking about her appearance when for three years here value waits are saying her appearance is impeccable with talking about inappropriate rigor or insufficient rigor in her classrooms when he never observed her and in reality the people who did conduct the observations do not complain about her rigor and testified that to that effect in connection with their depositions all of that certainly rises to the level of creating a question of fact for a jury what happens in this case is that the lower court in appropriately and beyond her of far to go so far as to decide those factual issues when there giving sixty days to the discontinuance and that's from what we pay and so the record establishes a very clearly that she was told from day one of school that this was what was going to happen if she refused to accept her probationary period it's consistent with the way all the other teachers were treated when fairweather started at the school in two thousand and ten all the teachers were asked to extend their probation for a year and the reason given was that he wanted one year to be able to observe them before he recommended suddenly at the end they suddenly become negative i don't know that i can get into the forensics enough to understand the back to eating issue but it does seem somewhat odd it does look like they're looking for a post hoc rationalization of the decision to discontinue her and i don't know why they were more clear in just saying however good or bad she is she refuses to extend her tenure it seems like they were trying too hard right i mean i don't think it's contradictory i think the standards to which a st year probationary teacher are held are a little different than the standards to which a teacher who's up for tenure are held just just in terms of you know evaluating whether someone's work is going to not it's a little different when the question on the table is whether or not they're going to be given tenure and i think it's consistent with what he told her which is that a fair weather sorry told mistake which is that he thought she was she had promise but that she wasn't yet ready for tenure and so when forced to answer the question on an evaluation of whether this is a teacher i on fair weather is recommendation i mean she never observed ms misaki herself to superintend and her decision was based on his recommendation and that's what she testified to was warning that if you don't says she's not agreeing to extend her probation what's the next steps so you know eventually lloyd testifies that the reason she was denied tenure was that she refused to extend her probation right i mean it's conveyed to her formally on october st by lawyer conveyed to her in a letter before that by fair weather who says it's a joint decision or a mutual decision of himself and would be and that's up to  placement of teachers in schools and so a teacher coming back to be assigned to a particular position and from no coming back the i think the no forced placement was in the collective agreement but not be a policy of putting anyone in the a t r so they're related but they're slightly seniority yes and i'll just very briefly address the defamation claim performance evaluations are generally subjects of common interest privilege u nless there is evidence of malice or ill well there isn't in this case the performance evaluation and question is just a series of checkmarks  right i mean i don't think it rises to the level of defamation it's not you know this court and state courts have consistently held that in order for a statement to rise to the level of being defamatory it really has to go to the core of the person's competency in  their in their profession and number of absences you know there could easily be eleven excused absences that doesn't reflect poorly on the teachers performance at all means a bare notation of a number of days it can't possibly be considered defamatory without