thank you ma'am please the court the issue that both of these cases present is whether there is sufficient evidence to survive summary judgment on the issue of retaliatory intent and in particular in this case whether there is enough evidence to establish for the jury to find that the employer's reasons for terminating both of these employees was for textual and i want to state at the outset your honour's that summary judgment is just not appropriate in a case like this very you have manager of the station for marathon and this is sometime in november the dates are a little unclear as to the timing on this then we will call her in and asked her if she would help him find a new program director for k r k o r d in that he wants her help in doing that she then goes on a short vacation appears to come back some time probably after the thanksgiving holidays and learns that there have been put in place two new program directors without her a talks with him and he also tells her that her job is secure and this again is in late november of one thousand nine hundred nine now then in early december one thousand nine hundred ninety nine and we don't have the exact date but it's it's radio station she gave him a background of what had happened because of the words that she uses in her testimony she told him how she had been discriminated on the basis of because she was a woman in the past and she told him you know my pay is still much the same as my male co host and she told him she expected him to do something about that and where she made a complaint that she was not being treated fairly because of her gender now that's in early december and then she's fired on cardie about it at that time and she has a pretty good relationship with her party up to that point they're friendly with each other there's some evidence there was some jealousy he had some minor complaints about she played the music too loud and that sort of thing but after she takes anger towards her persis did all the way up through the november of ninety nine when marathon media took over and then he was in a position to do something about how he felt just within a couple of months before had said to his croom something to the effect that linda still agree hope she'd be fired the worst recruiter than after that's what he conveyed when american media came and he may not have known he was going to be in a position of power at that time but that only ones that were fired that was a little on the summary judgment argument by marathon's attorney just it's the only thing we have in the record that they were actually terminated now they have twenty two other employees who resigned after time it was their jobs but still putting our own stamp on the station after we acquiring and it's consistent with that whether they resign people or firing you know that in other words they're changing the line up on the air and if they can find another place for someone fine but if they sell then they terminate so i don't see what raises an issue of pretext here when  to say well look these people all were gone from the company and so that shows we were changing things that if you look at the people they quite soon they were gone they point to and the end gary mitchell who was an announcer he didn't leave the company or wasn't fired for a year and a half after they took over and that was not an example of cleaning house or changing things that raises an issue as we've seen again as he said he was a knight announcer i believe at that time it was the on every day like monday to friday i don't know now then before the unemployment hearing they didn't just say you know no we're not giving evidence they actually said nothing they did cause their dismissal and they had the opportunity at that point to say whether there was any misconduct and certainly my experience is that employers rushed right down the list everything they can think of to try to win as an employment hearing that didn't happen in this case then after the litigation starts and this is really the crux of our pretext argument your honor is that they came up with a list of reasons why they said they fired her and if i will go through them there is evidence refuting that they are just not true or at least the jury should be able to weigh whether that was really a reason that they fired her and starting with miss stiegel for example and i've already mentioned this they are going will testify will she refused to move to another time nothing she could do to improve her job when he took over and he didn't like that it's food that never happened there's evidence in the record that that never happened and if none of these things happened and they're coming into court and single were fired her because of her bad attitude but the  on didn't happen surely a jury should be able to weigh the evidence not the court but the jury to weigh whether that in fact was the real reason and you couple that with the exaggeration of the form any changes and i think the present questions  fact and i want to go first to the issue that seems to dominate the first portion of this as to whether or not people were fired and whether or not there's been some kind of misrepresentation by marathon about what happened with various people's employment around but when you turn on that radio station tailor argy that these finest work for the voices for coming out of that radio on every shift within two months in america i haven't taken over were completely different than the voices that were coming out of that radio stated that radio prior to the purchased by marathon so there was a complete change of what this radio seemed to be like everybody on it was different and then also  contracted with a computerized music service that is that provided different music than it had been before the plan is the terminology they use they can't change the format they went back to  twelve in a row format they did a big kickoff where they played george strait music for an entire weekend and they were trying to kind of turn it around and indeed the record bears out the fact that they were really trying to make their own station they got an entirely new learning child and a few months later they concluded that morning show wasn't working either and they completely replaced those people again there were clearly big changes going on and i don't think there's ever been  was populated by two men in a woman they were the they were the people on that show they let go of both the men and the woman and i don't know your honor i don't i don't see how true that are and they replace that morning show with a male female team reasons for those terminations decisions here the reason was we were changing this radio station and plaintiff has never argued that the employer failed to meet its burden of setting forth these mom retaliatory reasons at that presumption of evidence of retaliation out there ed that point the question then for tom has either of these plaintiffs shown that marathons explanation we were making changes and we saw nothing the most articulate on this point and although the nice work it is recognized that there can be hybrid situations where you have both circumstantial and direct evidence this is not one of those situations this case involves sole circumstantial evidence and under god when to prove pretext to prove that the employers explanation is is artificial you have to show evidence that  is not worthy of being believed and end and that evidence simply is mind here that the court's decisions have made clear that minor factual discrepancies are not sufficient to avoid summary judgment and for example in the government case the court did find that there was evidence of pretext and that was a case where a woman claimed that her employer had failed to promote her and h ired her discriminatorily hired a man and that her and the court found evidence of a possible pretext because the evidence in the record of the contemporaneous reasons for the selection of the male applicant had applied for was inconsistent in material ways with the statements upon which the employer relied and for example the employer said that the most critical criteria for the person it was hiring for the job in that case was the male i mean things are going completely in opposite directions from what the employer was saying and most importantly there was evidence in godwin that the employer actually viewed the plaintiffs in as having these traits that it was we're really valuable and marathon should have viewed us as more valuable than it did they aren't saying marathon really viewed us as these valuable commodities but then it did this inexplicable thing as a result the closest that pla indicates that he was told he was just a group doing a great job in the morning and the sunday morning show had great comments he says the sunday morning show was more secure because they made the great comments comment that it's clear and i would just recommend that product at the bottom of the eleven in the time of the twelve for example they took out and they're overnight announcer here in mitchell and they fill that ship with pre recorded music so they removed a man but they didn't really put from her because they thought she had poor work quality and is sloppy work voice tracking is where you record record a radio show in advance and it's all computerized to just play like a line of someone saying coworkers these weren't fabricated if you look in the record at i see twenty six and this really hot letter from this kind of very angry using vulgar verity to a poem worker who showed up late for the that there's kind of little places at the margins where it where it's possible to get really excited about some difference in the facts as viewed by marathon in the past few by plaintiff but the point under the arch tough case and under the us supreme court has a virgin any inference of retaliation drops away and at that point the burden of production on pretext honor your honor i would like to emphasize that i respectfully disagree that the issue here is limited to whether the wholesale changes constitute a pretext i think when an employer gives a number of reasons for terminating an employee you the godwin case the court was very clear you've got to be suspicious of reasons that come up after the litigation started and these are not minor factual discrepancies this counsel would with suggest where there's just a glimmer of hope that there might be a disputed fact there was no statement that kristin kreuk just didn't get along with people these were very specific incidents and i think detailed in the brief for example airgun we call said she came in and complained to him five times and he didn't like that about her she didn't go in there five times i mean if there's evidence she didn't go in there and he says she did and that's the reason he fired or a jury should be able to resolve whether the the employer is telling the truth and there is a whole list of reasons of the vents that went on like that that the employer came up with in their definitions and i don't think those can be sidelined as some minor factual discrepancies those were the heart of the of the reasons they gave in if they're not true or there's evidence or not true it's really for the jury to weigh that and i