to report discriminatory comments by coworkers and within weeks of that occurring she was put on a performance improvement plan would do the question of discriminatory comments honestly protected they should first a right to change keep talking then again reported discriminatory comments by coworkers in january and february of two thousand and eight before being placed on a pip in march of two thousand and seven two thousand i was of the atlanta conference that's correct your honor she reported those in in january and february of two thousand nine shortly before being placed on a pip in march of two thousand and nine she again raised discriminatory comments by coworker in may while successfully completing the performance improvement plan what remarks were those that a coworker had been referred to as you people there was a reference to the fact that hispanics were living in filth and by a general remarks made by women and coyle that was a fairly guarded comment was i'm not sure what your honor means by guard an overt ethnic or markets it's characterizing people by race in the workplace just as a comment what you people that the context and in the context of the remark yes your point he's referring to referring to has been it could person in talking to magistrate decided based on that fact that it could not possibly have been relevant to the determination of what would your honour's not consider a statement by a juror when they report in the context of a bath and challenge when they report the lawyer said indian bitch as i was walking out the courtroom door the fact that the comment merely came after the fact does not in any way mitigate the possibility that it could be reflective  application of the straight remarks doctrine that misinterpreted this court's decision in tankers t mobile to mean that in any comment that is not a biased comment by decision maker around the time of the decision and in reference to the employment action is a stray remark that could not give rise to an inference of bias that's problematic for two reasons first it leaves only direct evidence that type of comment by decision maker at the time of the decision and in reference to the employment action gives rise to unlawful motive without resort to inference it is direct evidence of the type this court has said is not considered is not required second and most importantly from this court perspective it directly discrimination or television but that just simply isn't the case there is ample evidence of pretexts from which a jury would not be required to believe the proffered explanation including the fact that the explanation conflicts never saw a communication problem with this five way even though she even though she attended weekly meetings with her second miss poppy on his own and handwritten notes reflect that the quote teamwork approach had worked itself out and third a performance management eye chart a tool that the company used to to assess leadership people abilities show that miss bob ways team the eighteenth the chicago team was performing better than one of her white peers an operations manager it for the eighteen c south team based on metrics like my immediate supervisor listens so the notion that there were problems with communications on her team is lied by objective evidence the explanations are also under lied by defendants by inconsistency is in defendant's own statements miss by the way was told at the time of her terminations that it was not based on performance that there was a lack of trust by mr way of her leaders something you might imagine would be occurring when when when the managers are being accused of discrimination a jury could infer from those comments that that's exactly what the lack of trust referred to defend its claim that ms pop yano and miss le claire noticed that in her any issues she was having were improving but that an incident with an employee named tiny warner was that was the quote unquote last but miss poppy i know testified that there was a consensus conference call in which everyone discussed her terminations and that the warner incident was not raised she also admitted that miss that miss by the way had handled the warner the warner incident in the exact manner she had been instructed from this evidence a jury could infer that miss poppy i know in the clear were making up reasons to cover their own lawful biases other evidence of that same fact exists this poppy on a provided a list to human resources of the reasons for the terminations again after the fact some of which she admits herself were not the basis for the terminations and one of which she had no evidence to support until after the decision to terminate had already been made from this events a jury could infer that they were that the defendants were digging up dirt to cover up the fact that they wanted to get rid of this indian bitch who refused to accept the fact that her pay was not discriminatorily low perhaps most tellingly under the company's policies the senior most person in human resources the chief people officer terry brown was required to review and approve the grounds for termination according miss poppy yano there was this consensus conference call or at least some discussions with miss brown but miss brown disputes ever talking to them about any of the performance problems according to her the only  approved the terminations decision came from information in the purport prepared all of the investigation of miss bug ways allegations of discrimination in retaliation from that evidence a jury could could could infer that w pogge way complained of of discrimination retaliation the company wrote a report that it then relied upon to fire her as compared to address her allegations of termination all of this was lost on the district court because it was confused as to that as to the burdens and the intricacies and the elements with respect to the burden shifting methods of the indirect indirect method much of the party's briefing addresses that issue recently this court has in the size that focusing on the ultimate inquiry was a party discriminated against to retaliate against this what the is what the focus of the law should be two cases warrant discussion one a case by case in from may of twenty fifteen castro versus de farai university in which this court said whether to use the frameworks of the burden shifting methods or quote cut to the chase and ask the fundamental question directly could a reasonable could a reasonable trier of fact infer retaliations makes no difference going one step further more recently in june in miller vs st joseph count the court applied the three prong standard first enumerated by chief judge wood in her concurrence and coleman under that still in standard the elements are simple plaintiff was show she's in a class protected by the statute that she suffered the r was that adverse employment action and that a rational jury could conclude that the employer took the adverse action on account of her protected class they've also said since those cases however it's certainly appropriate to consider the traditional frameworks of the indirect interact methods of proving a discrimination claim and it's not fair for a defendant to defend on that basis that summary judgment or for district court to enter s case on that basis this is what would under the old rupert be called a direct evidence claim that that's not exactly correct defendants when they filed their motions for summary judgment moved under the direct and indirect method plaintiff responded to those are to the arguments that were raised at that time under both the direct and the indirect method with respect to the termination citing mr anything as a compared to or the problem of course is that when performance based decisions occur perform the evidence of whether or not she successfully performing her job is relevant to the prima facia case under mcdonnell douglas burden shifting pretext on a macdonald this is her burden shifting as well as circumstantial evidence under the under the direct  it all merges together as the court is right in numerous cases the same evidence may serve a variety of purposes depending on which framework is used or if we're just cutting to the chase and asking the basic discrimination question about whether a jury could infer discrimination from the evidence but the point i'm making is that this case hasn't been litigated at least on appeal and in direct method i didn't see an argument developed and  kings if i'm pronouncing it correctly status as a compared are and so i understand your argument to be that this is a direct evidence claim meaning direct and circumstantial evidence of discrimination ra brief i can pinpoint to your honor's where in a letter but we do make the argument that the jury misinterpret the evidence about anything he wasn't fired or disciplined or anything until he engaged in an error that cost the company money until that point his leadership issues were tolerated so the argument use it easier for you to is one easier for the plaintiffs than the other has received the plaintiffs want to argue the new method and i'm just wondering you keep telling us there's no difference but there must be that's why plaintiff's lawyers are always requires a plaintiff evidence that she can win a trial without presenting so to the extent the mcdonnell douglas burton shipping method is required to be analyzed or required to be satisfied it can be harder in cases  there are and always have been a multitude of ways in which a plaintiff can prevail and show a violation of title seven and comparable section one thousand nine hundred one cat's hall we haven't discussed it disparate impact not really relevant to this point but the variety of ways in which a plaintiff can show unlawful employment discrimination should not be limited or can tailed it you should focus on the fundamental question of whether the pla ff can show the adverse action which was on account of the protected class status because any other interpretation limits the theories of proof available to a plaintiff and undermines the statutory purpose thank you view of the evidence no reasonable jury could decide that the defendant took any adverse action based on bad ways race national origin or protected activity badly knows her evidence is weak in fact in her summary judgment response she says a number of we can add up to a strong but when we take a close look at the evidence it's clear that the individual bits and pieces that she relies on are either totally unsupported by the record i vs st joseph county case very recently it's still the law of the land it's still what the supreme court has you know issued and so we still have to proceed under that framework however in under either framework in this case it doesn't matter even if we want to cut to the chase and apply the standards that judge would advocated for in the coleman concurrence you know we still have in a plaintive who has not proffered compelling evidence supported by the record that any reasonable jury could find that she suffered some sort of adverse action on it on a protected basis one example of this is something that counsel brought up and usually during his arguments he claimed that the plaintiff had complained about pay discrimination back in two thousand and eight that's not true the the record is very clear that her claims her complaints about pay discrimination as they were raised in two thousand eight hundred nothing to do with her race or national in two thousand and eight and nowhere in the record does she state that in two thousand and eight she was complain on the basis of race or national origin i want to clarify though one thing she counsel is correct that she complained to colleagues resources and brought up potential discrimination in that context however the individual she complained to was somebody in memphis where plain is the corporate headquarters where plaintiffs was here in chicago there's absolutely no evidence that that was communicated to any of the decision makers so that's the type of thing that this  activity and if the decision and an adverse action and if the decision makers here who had who had involvement in the adverse action had no knowledge of any protected activity that cuts off the claim right away or any evidence that they had no knowledge you would inferences but she's not entitled to speculation she can't manufacture an issue of fact by inventing facts there simply absolutely nothing in the record to even suggest by inference that that was communicated in fact although plaintiff claims that she she brought up race and national origin in two thousand and eight to stephanie simpson and we accept that as as as we muster in summary judgment stephanie simpson claims that she did not understand it in that way and there's there's again absolutely nothing to say that that that was communicated anywhere to any decision maker the record is clear that the first protected activity came in february two thousand and nine when  myriad of reasons why those remarks are not probative here they were made it again in a social situation at a bar the night before a work related event in a conversation that had absolutely nothing to do with work  individuals involved were discussing one of their divorces and she had made a comment that you should get rid of your old indian husband i can help you find somebody more fun essentially that has nothing to do with work and this is the reason why we ha strange strange remarks dr and otherwise this court would be inundated with claims with you know of plaintiffs who claim that somebody in their workplace once made a remark that was off color that was inappropriate that doesn't rise to the level of discrimination and it has to also relate to some sort of that adverse action there was absolutely no nexus this court's precedent is clear that there has to be a remark has to be both proximately related causally related and that old indian husband remark really is neither truly it's a red herring however the fact that the plaintiff brought it up in february two thousand and nine goes to i think what she  the the substance of the pay claim it shouldn't be considered because it wasn't raised at the district court in response in summary judgment judge can correctly noted that although the defendants moved to dismiss the paid claim about pay relate to her retaliation claim but again those complaints are only probably to the for tally ation after they start introducing some sort of bias you know it can't be that it that it's just a general complaint that's not actionable this court has held that an adverse action has to be linked to protected activity not just problematic custody so to the extent that she  with between her complaints and adverse action by repeatedly making them over and over and over again despite having no no factual beef with the outcome of the investigation a plaintiff should or a defendant an employer shouldn't be forced to hold onto an employee just because she's making pay complaints or else i fear a lawsuit the reality here is that there there is ample evidence of an ongoing problem with her interpersonal and communication skills nine individuals complained over the course of two years those individuals were both inside and outside her protected class african american employees hispanic employees supervisors peers her mentor they complained back to two thousand and eight they complained to different people complained within weeks of her terminations not just time to warner but also john dooley who complained to the piano as she was on vacation in greece  in july just a few weeks before the terminations after determination additional individuals confirmed the reason that the you know the decision may have been made so this in this case there's ample complaints go only to timing and this quick court has repeatedly held that timing alone cannot form the basis of a retaliation claim and that's really all she has because once you look at the evidence in detail critically you see that really it is just timing the substance just isn't there what about the communication with future lawyers there is no admissible evidence about communication with future employers the only evidence that she relies on is the affidavi christie piece which is hearsay upon hearsay and lacks foundation the judge district court judge was absolutely correct in discounting that it was her burden to prove that there was some communication and there's absolutely nothing in the record to back that up she still has to rely on admissible evidence not just conjecture and speculation taking everything as a whole in the end the plaintiff has only proven with this court has repeatedly held it has been inadequate its and more fist litany of complaints albeit persistent complaints none of which hold water after close inspection of the record in the end zero plus zero equals zero and that's exactly what this plaintiff has offered this court and for those reasons and the reasons in our brief if your honour's have no further question few issues that your honor stories that i leave to our briefs including why the pay discrimination complaint was not a dry pay discrimination claim was not addressed on the merits of summary judgment the social situation in which miss leclaire told miss b way she could get rid of her old indian husband because white men will work for more fun is the precise type of situation in which a manager of a company is going to feel comfortable enough to reveal the biases that they hold or so a jury could conclude miss miss katie paul points out that there were nine individuals who complained about miss julie in two years yet defendants witnesses whose burden it is to explain why she was fired could not identify many of those instances as the basis for her terminations during their depositions examine the record carefully review their testimony and decide as a judge is this testimony a jury is required to accept as a matter of law given the innumerable inconsistency between them but tween at the same witness's deposition and their declaration and and the shifting explanations that were offered this court should not fall prey to the arguments that are designed to have it weigh the evidence and make factual determinations if any one of you believes looking at the evidence that a reasonable jury could answer the fundamental question of whether or not miss the way was discriminated or retaliated against affirmatively then ask yourselves if you don't believe that is my brother and looking at this in a way that is unreasonable as a matter of law magistrate held that the jury could not infer unlawful discriminate discrimination from his poppy i know calling this by the way an indian vision on her terminations day that also ruled that the jury was required to accept as a matter of law an explanation that in a situation with