unfortunate misreading and in some situations disregard of well settled precedent from this court on the nose president from civil rights actions on summary judgment there are three issues in particular that like to highlight today first the little critical error on summary judgment in finding that the appellant was an evil to present a fish evidence of pretext to warrant the denial of summary judgment now the court reached that conclusion even nondiscriminatory reason to justify the terminations so and if this report worked very diligently through each one of the reasons acknowledged either of his you know that they were not on necessarily those worthy of quote credence which is the language in the cases because the which says that well you need to challenge each proffered reason and then there's the footnote that says there is a measure put out exactly but none seven from that opinion explicitly states that when the employer or the defendant raises a bad set of reasons for break and then when you see all of the rest but if you look at each of those around two responses putting aside the telephone this issue about where the telephone technique was used to corporately each of them are in their supported by other things in the record maybe not a lot on the decision maker unlike a uniform issue which was run by decision it wasn't new it wasn't created post hoc the filing of the lawsuit on each one of those at least has some support preexisted that terminations that someone was concerned about it on the part of aegis so i know the footnote you're talking about i completely understand why you're drawing it or attention but is this really that kind of scenario where these explanations for the most the improper conduct well i'm going to try to unpack that a little bit here because the fact that they did raise a lot in different reasons is important in this particular issue where we are right now want to appeal because the lower court itself went through the analysis the lower court it self went through the reasons and found that some of the reasons were unsupported by the record some of the reasons were disavowed by the actual decision maker under oath when he testified as to what actually motivated his decision the standard is not could have been the reason for the term decision but that could have dug up about performance or other issues that could have led to term nation that's not the stink if all of these cases these civil rights he says either employment discrimination or title his deposition testimony there is testimony that states that he did not look at certain numbers until after the decision was made this is on page one hundred of his deposition testimony where he's talking about well what actually led to this decision he says primary a representative allen and saying that the computers weren't appropriately registering his information weren't working right that's only a part of it the rest of the record also shows that when you're looking at gross revenue you'll get the revenue this particular place compared through in this analysis everything comes down to credibility and this is where the strength is but no comes in and what we're talking about is when the defendants reasons for terminations are challenged by the plaintiff talking about credibility once a certain profit reasons are sufficiently challenge what you have to do is say all right now it's the jury's decision because a jury may decide in this just put up eleven different reasons determination ten of them are  so on supported by the record false and one false and all a jury may decide actually i don't know the reason for this term nation and it may very well be discrimination that is the summary judgment standard and that is what was ignored by this retaliation correct because there is a causal connection for a variety of reasons that you can prove retaliation or friday of ways or third circuit present to act at and circumstantial evidence temporal bias which a jury has to conclude when she's talking about the fact that the claims are from chester pennsylvania that could be used as a proxy for race as mr mclean explained it this means he knows about chess or she knows about the demographics there that it's seventy five percent african american she tells him about a traumatic experience that he had there that she had there when she was in high school that led to her with heating the area she did comments about a song and dance that mr mclean allegedly would do in terms of making excuses it's your position that those straight phrases are racial on a ship my position is that the jury can conclude that they are and the fact that the lower court took that opportunity from the jury that's the error that needs to be reversed on the third circuit decision and i'm on am they at code words are important the jury has to be able to hear the evidence and decide for itself as to what exactly was determining and motivating this decision that's what it all comes down to their credibility when they're offering reasons that have been challenged when they're offering reasons that shift and change over time as the court recognizes and i want to emphasize that part of the court did all the like work i would say to use a football analogy  know my time's running out but this last night he's a football analogy which at this apropos for this time of year the court took the ball and true of it all the way down the field and that stumbled it right on the one yard line it did the hard part and then took the credibility determination  instead of the jury thank you very much  i'd like to also just reiterate with this case is not about it was not a personal claim for racial discrimination by mr mclean he was neither an employee who was even the principle or shareholder owner of alabama i believe aspect of it in fact i don't believe simi played much of a role in connection with the whole hiring recruiting process for each and that with left other people and i think it's critical when you start looking at things that are presented by pla facility and he walks away from the telephone techniques and uniforms during the deposition but i think in his deposition he was testifying as to what really motivated him at that point in time to make determinations decision by signing around additional examples of satisfactory performance that played into the entire record that he had had before but there'd be little bit unusual if if those are examples of satisfactory performance  agency's locations were the avery school doesn't that play into whether this could be a pretext for discrimination but i think it was more important to mr osborne was the fact that ellen  at the very bottom of the belief that it wasn't very bottom sort of very bottom get terminated his well i'm not sure what the train was with those other agencies that the very bottom but for ellen and clearly it had gone from you know a fair performer down to one of the bottom performing anybody else get terminated based on a c s i i believe yes or correctly stated that that particular here there was no other so that would be correct the only the suit would be terminated based on the says on the cleanliness issue that's an issue of fact because it's disputed as to whether it was unclean or not i'm going to see a side issue we have only one agency terminated they really matter but they weren't even the very bottom and the third issue was this hostility which could be racially motivated let me turn back to the cleanliness issue because i think it's broader th i don't believe there's any tie in the evidence between the failure to originally properly upload the c s i numbers and the subsequent placement of the computer system but all the same all the operators had the same computer system with respect to reporting to the c a site numbers at that point in time mr mclean does complain that you know he did not have you know the training word thingy ability or there was some obstacle to his uploading that but it was changing operator crack there were some improvements me but for example but i think the evidence is clear that with respect to the film upgrade you know the company had a schedule for when it was going to be replacing founds and you know simply because something like that and other personal items removed and he shows a week later and there's no dispute they're still there the receipt that there was a conversation that removing some personal items from the agency that is correct there is a major dispute as to trial he's on the witness stand and he starts his from some of these questions about c s i cells or revenue he turns beet red he starts drinking water he is sweating profusely well the jury can read into that and make a determination as to whether or not they think a person is telling the truth that type of opportunity was stolen from the jury by the district court unfortunately in this case the case is actually very similar in some ways to recent third circuit case which found genuine issues of material fact regarding the reasons given for terminations and because there were challenges to that proffered reasons that were sufficient well then there was pretext and the case should not have been denied should not have been granted on s judgment something that's going on here the lower court itself went through the various reasons looked at the primary quote unquote primary reason determine for itself quickly that it was based on disputed facts and conflicting testimony and then just the very end stating well in any event i don't think a jury should be able to hear this case and that's not what the third circuit says and the third circuit actually says and the supreme court clearly wants there are grounds for dismissal eating the