because a pretty straightforward mattered i don't think it's heavy on the law i think that the court after making the determination that the plaintiff was a protected class member and there was a prima fascia case case made then and looking at whether or not there was a justification for her terminations weighed the evidence improperly and ignored the evidence of pre into maternity leave to the people who told her so your determination is not due to your performance has nothing to do with performance and that was repeated subsequent and emails that she exchanged with the human resource people people are not the people made a decision right correct the decision was made by a group of regional managers who supposedly sat in a room and discussed district managers which stephanie charles was the district manager right nine years employ three years as a district manager the regional manager then supposedly we're going to have a reduction in force and they were to bring forth the people who were not good performers in the regional manager meeting the person who last evaluated stephanie charles christian that had been terminated in part she was terminated because the way that she evaluated around one time sitting around a table and making this decision that germination decision absolutely in the reduction of force what they want what the argument that was put forth was that in the reduction of force meaning there were two meetings conducted in the beginning of january of twenty four teams and at that time regional managers were to bring for the people who are doing well the problem was the regional manager who was responsible and who had last supervised stephanie charles had been terminated so she's not at  person who is sitting in at that region had never met stephanie charles your client was deposed and her testimony recognized that there had been her performance and been found somewhat lacking in this most recent position compared to cheer her arc before that was excellent to the fact that from the very beginning when she is put into the consideration when there's the initial email correspondence to go there it marks and says next to her name it's a stephanie charles considered for realignment and there's an m next to her name it's like what's the  impacting any group i mean if you do put management in something of a bind when you have just pretty impacting just print treatment rules because that they have to look at the outcome of what they're doing  and i agree with that except there's only one document that in the record which indicates where they tracked either p o c peoples and people of color and then they supposedly track people who are on maternity leave and there's an analysis of ok here's the overall i heard that from one person because other person said i have no idea why it's there i said why do you continue to repeat that and then i heard well because if she was on maternity leave we'd want to know that when we went out to terminate her because it might impact how we met with her and i said we'll know these regional managers have offices these are all stores or supervisor in malls or standalone store so the person the district manager goes from store to store to store so wouldn't matter whether she was on maternity leave it out of here if your intention was to fire her then you were going to set up she's going to meet you where there are holes in that argument because in the regional manager meeting they are at meeting where the names in the list are developed in order to determine who's to be to whom to be terminated they went from person managed to regional manager to reasonable manager and said your bad district managers her regional manager has been fired the one who's sitting in the room has never met her and in a deposition says a whole lot so i didn't put i didn't put her name forward so then how did stephanie charles's name come out as the no she didn't have a track record or no there was no earlier list there wasn't really a list just one list right yes there is no no there's an e mail when they're saying when they're saying when you look to people that are as are going into january twenty four team there is an e mail that says check out some of the reassignment positions here and they put stephanie charles name been assigned to the new manager and indicates that she's on maternity leave there's no list the is that your position that she appears on one sixty one which is with the first e mail which is one sixty one sixty one after meeting of the regional managers which is except the record to fall into one sixty three in one sixty four january twenty third fourteen that's when she shows up as sixth on the that's not alphabetical then one sixty one sixty one sixty days later in the regional managers this is the directors of the store reporting to the assistant vice president there her name is employees the first five people were cars employees there was no dispute about that and then seventy chass number six she's next up and the issue in terminating heard indicates her name her job position i think years with would be an easy choice these are tough choices but they had to fire thirty people and i don't think you're challenging that that that they had a legitimate business reason in the sense that they had to get that legitimately did need to reduce their workforce by that's correct so it's all a matter of of choosing people among maturity and the fact that she was doing well her last rating that the one i got all of the info that she appears first i'm looking at this less from one twenty three two thousand and fourteen that is that the first let me let me on the one twenty two list she's about thirty people in are twenty people in and on the one twenty three unless she is  these were these were ok you're over your time we've been very generous here so let's hear from the other side i'll give you a minute for rebutt thank your honour's during r c m behalf of abercrombie police may please the court as judge found abercrombie has no problem with employees including district managers taking maternity leave companies st work with that issue in the couple of years preceding the reduction in force but just evidence in your favor so what does that tell us i mean pregnancy discrimination right right and he pointed to his items why and he says the district court weighed these items which is not supposed to do on summary judgment you know it was to weigh the evidence correct right correct why is he wrong he's wrong why why doesn't that create a genuine material tribal issue of fact it's wrong on the pretext yes or it's wrong because accusations and opinions aren't evidence but what are the opinions and what are the accusations you're talking about the accusation is i was pregnant i was discouraged terminated because i'm pregnant and there's no every well he points to his list any there's a big i'm sorry there's a what and i am your hon they've argued that the m is direct evidence of discrimination direct evidence is evidence which on its face is offensive describing the research evidence of awareness right  never in terms of how much separate she required correct your honor and she obtained all of those benefits the only evidence in terms of what went into the decision were employees performance potential response is to take them one at a time before we get to mcdonnell douglas please i think your your your response is that the am standing alone is not direct evidence because it requires an inference but i want to make sure you got that right well absolutely out it absolutely is not direct evidence i mean you would have to make some giant was not a trick question i'm just trying to figure out you didn't say much about it in your briefing and i want to make sure i have got the entirety of your response yes that's right correct the m is not direct evidence it's innocuous on its face it is in the actual people making the decision knew this the testimony on that point was i mean these are lay people making the decision they want to be aware they checked with the legal department they checked with human resources department i believe one one of the this is a decision makers testified she said i don't know the legalities of this i we need to have it looked into and they wanted to be aware as the human resources person said that they were not having any type of disparate impact on any type of protected category and that was run up the flagpole they  she was rated what was it good doing doing well yes and he told her earlier that she wasn't being terminated for poor performance ok so why doesn't that also raise an inference that just maybe they selected her because she was pregnant well again the evidence is that as chris judge kristen pointed out she is in a declining state of performance when she reaches this level by her own testimony the job gets tougher the higher that you go she received annual reviews mid year reviews did self abuse where she even herself was self critical of certain of her shortcomings at this higher level so can we talk about that from minute there's an august twentieth eleven rating leadership touch derek kaufman i believe who got the same rating yes ok so understanding this is all sort of relative because after make very difficult decisions what's the next bullet point i should be looking at the trajectory of her performance here that was twenty ninth of twenty fourteen there's another list in and an excel spreadsheet form yes and she appeared on that list for a visit are there is was there a third list i believe there may have been another in the process was this in late two thousand and thirteen understanding that they were going to go through this reduction in force they met knowing that regional managers were going to be dismissed as well yes they met with them has them with the read i'm sorry the directors met with the regional managers to gather input on the performers in their regions district managers who would be subject to the ribbon they needed to get that because the regional managers were going to be let go as well at that meeting the testimony is and this is what counsel did not make clear to you kristen naturally identified her to bottom performers by name i think that right c c this plaintiff was on every last breath that's my first go on with the  they received that input ok they all talked about it then they meet again in mid january and this is after the regional managers who were let go are gone so you have just the regional managers who made it through the roof now talking about district managers who would be let go from that meeting a list was generated mistrials was on that list she'd already been go ahead ok and but this is now a new person who's there for her regional manager right this was ms eyler so just returned from maternity leave was going to be the regional manager of that region yes ok so she comes out of that meeting on that list that then goes to the directors said hey here's another high another level up here's our list and the district manager i'm sorry the directors they need to decide do they agree they're the ultimate decision makers the two mothers bonnie castello and dina shilling and can can we afford from a business perspective to lose these people in these particular regions can the region sustain this now l a had to let go of two people so that really wasn't as much of a concern in l a but she made it then on the finalist and that i'm sorry the list that went from them then did you know make sure that we're all good here and then you had your final terminations list that was bluff says that three lists i believe that history but in any event she's on each lift now at the at the meeting in which she was terminated misael is was there who had just come back from leave and sterling they were not in h r they were not decision makers ok the decision makers were two women both mothers they were tasked with telling people that they were being let go tough tough job sharon has had to have something to do with her being on that lunch no your honor now why because she was placed on that list by virtue of feedback from her regional manager kristin netsky before netsky was let posing councils right when he says they sat around that i mean he was talking about the person there from as her regional manager was going to be much less familiar with her historical work performance well at that meeting but that's not the testimony was i mean if they were solely focused on that snapshot in time and she was going to be the only person i'm not suggesting that was a snapshot in time but my view is that they the course had to look at her historical performance his point it's just that the person at the table was and it wasn't brought up but you know again that's a snapshot we don't know what his performance trajectory was there's not a single performance review of his in the record and he was test on that same i'm sorry tab on that same sheet that piece of evidence they had in rebuttal to it and said look you look at all the evidence they presented to raise a tribal issue a fact just a pretext just doesn't add up right there or they had some evidence that i am the ratings they had some evidence in the district court said it just doesn't add up no reasonable trier of fact could ever find the pregnancy was a factor in her discriminate termination right well no i mean i would argue no but if you want to go down that route i mean it's there's there's still no evidence of pretext there's no evidence that her being on maternity leave was a specific and substantial reason for her terminations zero well they've the point is they presented some evidence in the district court's judgment that evidence as a matter of law wasn't sufficient to create a tribal issue a fact and therefore and he reaches that conclusion by saying no reasonable trier of fact could ever agree with that position that there was discrimination no i just you know i i find that you know i did that as a district judge i see it all the time but i always find that that last at least in part because of her performance and she was being fired well i understand but she knew that correct and in the testimony was from israel or that it just very humanly she was caught off guard and was trying to be with why she was on ethics what even if even if the court were to view her statement as a lie or an untruth the case that we cite in our brief say that the statutes prohibit discrimination not lies so even if this non decision maker was untruthful with her giving her the benefit of the doubt to be nice and being caught off guard that does not arise to evidence that would show pretend we create pretext efficient to survive some well i don't understand why it's even a falsehood to say that somebody would be terminated because of their performance even though their performance needs improvement that's sort of one thing and it's quite something else when thirty people have to be cut and we have to make the decision then we look at folks who otherwise would have been let go true they gave it to the twenty one year old girl who she had trained to and replaced her so that the the fact that her performance although what they said was we looked at this one thousand box performance that's the mention like an acid shrinkage position and that she was being recommended for that position this was a month before the time that they had the meetings in which the bad people were to supposedly to be vetted and brought forward and there are four lists that she's put on there is the three that you unseated and then the last one which is in response to your earlier question to resign it's one seventy two and that's the one that measured the disparate impact for people of color against the population one seventy two so the h r people in the creation of these lists are being passed from the regional manager to the story to the store directors h r didn't do one thing didn't change anybody in the list there's never went through a legal department they said that and that's why they've never put in their papers never went to a legal department so what happens in those team meetings is the key thing where we're going to put together the sixteen regional managers to talk about your bad district manager who do you have the person who is a regional manager got