the district court threw out the case on summary judgment despite a plethora of pretext evidence and this court in the case of stiegel summarized the law on very little evidence to survive summary judgment precisely because the ultimate question is one that can only be resolved through a searching inquiry one that is most appropriately conducted by a fact finder upon a full record have often stated that because motivations are difficult to ascertain such an inquiry should be left to the trier of fact and employers true motive in an employment decision is rarely easy to discern as we have previously noted without a searching inquiry into these motives those acting for impermissible motives could easily mask their behavior be kind of behind a complex web of post hoc rationalization under that the discrimination laws for based on her ethnicity her age and her gender and there was no dispute as i saw it from the district court as to and the  anything more i think after a little more than that yes your honor we presented evidence as to the age the ethnicity and the gender and as to her excellent performance in performing the job for fifteen years a her work group she was the number one producer and in fact there was a time period where out of the ten she produced close to forty one percent of the total production for the entire team and so in terms superior they can fire you right yes your honor i mean that's pretty there are certain actions and or if you rob a bank you know you take money they have evidence if you take in a whole lot of money that's not yours out of their what what is fiona's they claim that she you know wasn't properly recording and her log and that she was saying she was making sales calls that she didn't fact make so what is mystery on this response to fed ex is allegations that she detailed record keeping and that she had never made a sales call that that wasn't recorded appropriately and this is part of the pretext your honor and fed ex is trying to and make a case that the record keeping was somehow inappropriate or inaccurate and there is evidence that we produced that the record keeping in fact was accurate and appropriate and  it gets to the issue your honor of how fed ex fed ex an investigation in the first place was a pretext because even though from the very beginning of mr meek mary's mileage audit discrepancies were found with regard to every single one of the team members in miss yanez region she was the only one whose explanations were not accepted right away her explanations were common sense explanations and they were they were reasonable but they were not accepted like everyone else's explanations were accepted and this is where the pretext began your honor at that point and the sham investigation of miss vienna alone continued whereas an investigation of others who had and who had similar discrepancies or similar problems in their record keeping and did not continue and i'd also like to point out that there's a multitude of evidence relating to other individuals at fed ex who were given progressive discipline  situations involving recordkeeping instead of progressive discipline instead of accepting the explanation of miss fianna and fed ex in her case and had jumped right jumped right to the conclusion and that somehow she was deliberate or willful in her actions whereas for other individuals who did and the same sort of wrecked record keeping errors there's evidence in the record showing  then meetings coaching and counseling documented discussions expectations meetings and and it's important to point out your honor that within fed ex's own policies and there's a there's a policy that they used against her they called the falsification for others who did that similar things to what she was accused of and they didn't call it false in this case because there's the mileage audit and the nine uniform application of the policies is only one of the evidence if all of it's ever claimed with you and all of the employees that you're talking about that were investigated were of the same gender and she was the one that's it was all about you hardly have a claim for gender discrimination correct well you're honor because she was the only hispanic female and that's the only thing you have right now right because they're all over forty and you have some other women gave explanations that works that's what you're well we're through with regard to the nine uniform application of that mileage audit yes but there is additional evidence which calls into question the motivations behind fed ex is terminations of her with regard to the other protected classes that she's in and the do the oldest employee of so you're basically just it would seem that you're saying that's why i said there was an assumption that you made a prime official case but if and that's what gets into the burden shifting and what you're saying is that they said they fired her because of you know there were things in there that the record that she said she made calls that she didn't make there was this self claims for mileage and they essentially said that and you're bias and the jury might determine that he was not biased or the bias with on infect others with that x who participated in the decision to terminate the employment but if you look at everything and all inferences that she showed that there was pretax is what you're saying because i guess she gave some explanations and then they investigated more things and then they didn't talk back to her and they fired her right yes your honor an investigation right your honor that goes to the some of the shifting positions that fed ex is taking which also raises an issue and that should go to a jury and initially they didn't inform her of any any problem whatsoever in a record keeping and then they did they did the mileage audit they waited quite a long time and then when they had certain things she said that she always stays logged into the v p and that when she was allegedly on call so that would show or on the beat that would mean that she was not making the calls but that sometimes she took her laptop with there and sometimes she failed to log out and didn't really look and i think that's right your honor there were reasonable explanations for for all of the allegations against her but they were it seems as though the commonsense was ignored in order to reach the ultimate conclusion that she had somehow deliberately falsified information and it goes directly to show how the fed ex treated others in similar situations differently and they singled her out  that that macmurray met with those people and they stated that the on a did not meet with any of them on that date in question i notice that declarations are proper twenty third twenty fifteen through march third twenty sixteen which appears to be after the date she was terminated is that correct or no and i believe some of those interviews may have happened after afterwards more importantly your honor we were able to talk to most if not all of the as the clarence who walk back their original declarations in saying that it's it although i may not have met with miss fianna that day it's likely that someone else from my office would have met with her or i was in a meeting and i was unable to and she was there so the investigation by fed ex simply asked asked leading and very narrow questions in order to in order to get a result which did not show the big picture as opposed to the evidence that we we provided as to other individuals who were who were fired for deliberate recordkeeping problems they either had had personal gain that was admitted such as using company credit cards  or multitude sometimes hundreds of of record keeping problems that could not be explained and and they were given the progressive discipline whereas in this case  was not well i guess what's your best evidence it seems that ok you point out a lot of things that have the investigation just didn't seem fair and that they were gunning for her and that's your perspective on how you shifted that it was protection law other than the fact that she's a woman she's spanish and she's over forty even though a lot of these other people are women and over forty how do we you know what evidence you know what if you don't like someone and that's the reason that you chomp up an investigation against them how does that get into was because you were a woman and you were over forty well you just don't like them well i think i think in this case there is specific evidence relating to the statements of mr macmurray made about which were directly which were derogatory and directly related to the protected classes which we've sued under your basically your time so i'm going to give you two minutes  two reasons one fed ex services articulated a legitimate nondiscriminatory reason for terminating this fee on its employment which was her false the caisson of company records and to this fianna fail to present specific and substantial evidence to establish pretax how much of a chance did you give her to do that before you fire it seemed like you know they just barely talk to her and then they just double down on everything and fire audit of not just mr murray's team but also fee because i hear major on the eastern sales board that occurred after a discussion a taken place with the director of sales mark maynard about looking into reimbursable mile each of the teams the audit was conducted of the entire team and to go to just battalions question must be on it was not the oldest on her team mr murray had a very diverse team that consisted of four female sales representatives one female administrative assistant and five male sales representatives the oldest being a hispanic male ignacio who thinks diaz who at that time was sixty one years old idiot gucci was an asian male who was sixty years old roberts a white male is fifty six year old fifty six years old steve gresham was a white male is fifty five years old those four alone were older then th hypothetically ok so if i have a team all women ok and i and there's evidence that i singled out one of these women and it's because i didn't like her woman yes ok don't like the way she was being a woman do i just that person have a claim for gender discrimination or is she for occluded because there are all women on the team as a matter of law  i think your honor if if you were hypothetically make the position you did you terminate someone because they were a woman that would bring a gender claim but there's no all the other women even though the whole team is all women i think if you can establish that the term a nation was real a being a woman was related to the decision making process then yes you may have a claim but that is different than the case here there is nothing linking your manager culture many sexes very much the alleged comments the two specific alleged comments that go to gender your honor i mean would you make those comments to a man they know they wouldn't be appropriate there are some comments you would make to a murray even became a manager he alleges that on several occasions the cement very made these alleged derogatory comments that means those comments had been made at least one year prior to the terminations if not fourteen years before the terminations some theory over there ok so he made the comments but then there's also evidence let's say that the cheap you know that she presented that fed ex investigation was not fair and could have been based on discriminatory anima she offered reasonable explanations for the alleged mileage over overages and mcmurray didn't address them shefford reasonable explanation for allegations that she was on the internet system at the same time she was allegedly making sales call which murray did mcmurr did not address she offered evidence that the declarations that my memory secured from the clients to the effect that the ana did not meet with them when she said to cheat did were incomplete and the subsequent declarations from these clients stated that they did not know whether beyond a had visited the locations on certain days the record also shows she was never given an opportunity to respond to macquarie's allegations against her until after her employment was terminated so if you take these factors and you couple with i don't think it's proper to couple them with the straight remarks because they are straight remarks i mean this court recently and to carry versus united airlines and a decision on january seventeenth two thousand and eighteen said that the failure to show a nexus between a discriminatory remark and united subsequent employment the says and rendered the evidence insufficient to make the required she was not this type of situation the way that i look at this case is that you know you've got somebody who had been an outstanding top performer in her role prior to these incidents and then you know there were problems that developed and i think that the district court appears to be very persuaded by excess case that there was some fraudulent submissions there were problems in handling the i cell system and there were practices that could open it up to criticisms about going home and during the day and then how you report the mileage and so there were all these problems that developed but as i reviewed the evidence for a record there were a lot of other people with similar problems and so the fact that fed ex appeared to handle those incidents differently than they handle the instance for this particular plaintiff doesn't that give rise to some material factual disputes about pretext that sufficient to survive summary judgment we're not talking about who's to win here but but why why isn't the evidence regarding her issues and other people's very similar issues and and how that acts treat them differently why isn't that enough to survive factual disputes though she had explanations that she proffered regarding how she used the system it sounds like other people are very confused about how to use it as well she had a certain practice regarding mileage submissions it seemed like other people were doing the same thing and then fed ex made a determination you know no one is disputing that fact made the determination that there was faults vacation going on here but what she saying in and that was the reason for terminations the question really has pretextual and asked to the question about it seems to me that the evidence is really disputed because she did proffer evidence that other there were if the court looks at the record on pages fifteen twenty nine to fifteen thirty six fed ex presented to the district court i'm sorry it's thirteen forty six th fifty two of seven white male employees who between the time of aug two thousand and fourteen which was about one year before miss vi was terminated to november twenty sixth being a little more than a year the terminations letter here one of the exhibits on march seventeenth twenty fifteen i had a discussion with you you weren't five and mourned on inaccurately talk about documenting complete completed so therefore you were terminated there were other terminations letters in the terminations i pointed out where they were first time offenses and terminated and the letter you just mentioned your honor judge when regarding a different decision maker than the one in this case who gave a warning letter before the f and continued and then terminated but the circumstances behind why there was a warning letter right up before this case are not in the record let up before this court there is no evidence outside if you take the stray sales and to go to your question you posed to opposing counsel judge callahan regarding the decorations from the customers those decorations were procured during discovery but those same statements were made when mr  that's something you can investigate you know that that would go into the scope of the investigation and then i think that's part of what she's claiming that was unfair everything she said no one cared about and everything they wanted to investigate the double down on that's what that's what her allegation is and so if that is just spewed it why why don't we have a jury on that why do you get to when you know as which edge when said why do you get all inferences in your favor that you weren't doubling down and she doesn't win the summary judgment standard is she gets the inferences in her favor and she says everything she said you didn't care about and i don't see anything in the record that v p n was checked out you know and then i don't know then that then you have this i mean this it starts with an arm runtime or that there are some that that she has some explanation about sometimes she used another family vehicle that wasn't registered on that and so it really wasn't that she was claiming mileage that she wasn't doing she just didn't have that car registered on it and that that would not be if that in fact if she were able to prove it that it it wouldn't be f the law we don't have to prove our legitimate nondiscriminatory reason we just have to articulate it which was a violation of company policy regarding falsification it was on our honest belief at that time that we had six customers who minutes thank you your honor briefly with regard to the evidence in the record of others who were terminated for example at three fifty two three fifty three and three fifty five there are  letters regarding terminations but in every single one of those instances there were warnings they were advising of problems there were performance improvement plans that were provided  and and the the evidence shows that those instances and were deliberate almost criminal type instances not record keeping violations so what what we had here is that is fed ex calling record keeping negligence at most and comparing it to some of the individuals who they may have fired after warning so and who did and if she were if she's like submitting mileage if a jury found that she question of fact as is what fed ex continues to say was their honest belief about the investigation the whether it really was their honest belief or not is another question of fact for the jury thank you all right  this matter will stand that if we have one more matter on the argument or it's just going to take a very short five to ten minute recess and then we'll be back to conclude the final argument