case there are several issues on appeal both involving summary judgment and a twelve the motion to dismiss on summary judgment the issues are whether the district court err in dismissing a discriminatory pay claim a retaliatory reprimand and a retaliatory non selection on a twelve the motion to dismiss a single issue is whether the district court erred in dismissing without need to amend a discriminatory reprimand claim other than the  the district court made a distinction as to the men and said well this there got similarly situated what is your response to that that's what's your best argument on that point absolutely the best argument is with produce the pay rector's records and with respect to dr lou there is no indication that he performed more job duties the only evidence of that again is dr militance he's affidavit which is inconsistent with absolutely just as it involves the similarly situated we presented dr lou's records that show he did not perform additional job duties then dr back if physicians receive a pay raise or more pay because of additional job duties those job duties would be identified in the pay records and they were not so viewing and again and the plaintiff believes here that  y doctors at an davidson's charge by contrast is a document again created as she testified during her deposition a document created for this litigation which she admit omit she rgument your pretext of argument limited to contending that the evidence permits an inference of discrimination as to market pay is that what it's limited to y absolutely and if this court has no more questions on the discriminatory pay issue i would like to move on and focus on the retaliatory non selection otherwise known as a retaliatory failure to promote pla yes i had one tape it to my podium with three but i appreciate that with respect to the retaliatory failure to promote we believe the court misapplied the war case misapplied the harm a low case and he demanded that she not pursue any claims of discrimination and what's important to note you'll notice in the briefs that the district court referred to general comments about a nurse male nurse male was identified  complaint of discrimination so excuse me i think these are arguments that go to pretext yes would you like me to focus let's go back toward it they go well actually what i wanted to ask you i thought i think i understand your arguments across the board higher than they were for your client and doctor like jack had more relevant experience so even though you may have some pretty some pretext argument relative to d pinsky's alleged animists would that have been about for cause of her failure to be promoted wouldn't she not have been promoted on the objective facts that she just factually correct reason that no one disagrees that it's factually correct he had more experience and it's factually correct that he scored greater on the p p i scoring the issue is whether they relied on that and i believe a jury  d rightly question dr militants he's credibility and whether he actually relied on that score when after significant proceedings including the filing of a federal court lawsuit alleging gender discrimination dr changed in and he asked the reasons for the decision i think the defendant's case would have been much stronger if dr militancy have not added additional reasons including a reason the comparison of certifications that's factually fa claimed after a federal lawsuit was filed in his deposition that he didn't just rely on the p d i scores he added additional reasons including the experience which wasn't lie isn't this about all of the ground on which to affirm that the evidence wasn't there for a prime fascia causation element absolutely facia case the third element the cause ation element i can chose not to rely on shows to enhance and a jury can question that if that was the real reason why did he change it why did he throw out a factually incorrect reason in this court's decisions that are set out in in the appendix in the briefing is that if one reason is so suspect that it lends the lack of credibility to the employer and with all due respect there's not a reason that's more suspects than one that's factually yes i'd like to reserve the one minute and i'm so i'm i'm going to apologize for doing this but i do think this question may help panel going forward on the on the last issue relating to the dismissal of the complaint and and the question of leave to a man you seem to have narrowed the argument to the reprimand discriminatory reprimand yes is that true as to leave to amend as well that you're not asking for leave to mend as to all the other claims that would only be with respect yes your honor ok that's helpful thing y turn the first issue which is the gender pay claims what is undisputed is that oklahoma city v a is determined by the medical directors and during this relevant time period there was five because there was high turnover and there is zero evidence animists of any of those five and they are the decision makers number two there is no evidence of a cat's paw theory here during the relevant time period the only two alleged discriminators dr militancy and dr hike did not of the pay that were made were free of discriminatory animists there is nothing to the contrary this court doesn't even need to get to the small counterfactuals is discriminatory animists necessary if there is proof of disparate pay and no no other explanation other than that that had to be gender base yes your honor only first well two things one i think that's true under title seven this is not a disparate impact case it's disparate treatment and the touchstone is intentional discrimination and to the extent there's any question as to the ultimate facts or how this neutral pay system played out there's also the undisputed fact from dr macpherson labor market economists submitted as part of the summary judgment motion that there is no statistically significant difference in market pay between males and females in any one assume additional duties everything from pain management order the otherwise in the instance of dr lu he assumed to additional duties he did compensation and pension exams after normal work hours and he also did agent orange environmental reviews for those appellant points to the record at page seven twelve and seven thirteen those are performance paid documents and performance pay has indicated by and davidson's declaration the chief of h r r backward looking evaluations twelve when the race came because of the additional duties and it says in the remarks section change quote change in assignment that's because there were additional duties that maps on the idea that somehow the record is inconsistent is not true but  we supposed to rely on that that seems like it's a pretty general statement and i think what the hell and saying is that if he was paid for additional duties why doesn't that show up more clearly in the pay records i guess you are that's a critique of the record keeping of the v but what it's what's be clear what's not disputed there is no dispute to the doctor lou did in fact assume additional duties you know contrary deposition testimony there's no declaration or evidence from doctor lou or from anyone in game so it was an affidavit after after deposition sure and after a very extensive deposition why wasn't he asked about that why wasn't it clarified who will because it was going to be a in showing that the that he was paid for additional duties instead of coming in pay was raised during the course of the pay freeze one is the conversion of retention pay and the other was increased well so i'm saying counsel is that the cold record going through the cold record the question  whether there's that one can draw an inference pretext and there really isn't much there in terms of the records but i mean you don't seem to like the question but i know i got to get i'd like to get a clear answer from absolutely so first of all putting aside the fact that the two facts that are still in dispute namely the medical doctors decision and there's no catspaw here and this is only one of the rampal and i understand that but but but the claim was dismissed by the district court of pretexts and that's what we ought to be in a p document there's no requirement that of greater remarks and remarks section of a standard form fifty these are shorthand for each other and this is not an issue brought forward by the way intel in response or summary judgment so this has been the consistent theme of the made less so it's not some sort of consistent gender discrimination taking on a whole lot of eighty some odd doctors with no statistically significant deviation which would show gender discrimination and a record which does have a grounding for a difference in pay and a declaration that he did assume new duties that is uncontested that is what sufficient to demonstrate pretax again given the broader issues as well if i could turning to most of the questions on that one those are uncontested and although appellants contention is somehow that this that the secretary has added and subtracted factors something i will address in a second because it's not accurate the one thing as important is that what stays consistent throughout is the there's no allegation we ever didn't claim the p b r as the basis and in fact dr like jack scored higher so the adding of surprise and even if one were to assume that to be the case which it is not it is still the justification and basis for appellant's brief to look through those appellant ignores testimony seven lines down that explains that it was not bored certifications and explained the answer above where it said why did you select dr like jack and very normal nomenclature of a non english native speaker by the way dr mountain ski explains well he's a good doctor he has experience is more surf occasions he has a longer experience as a doctor true he got better reviews true and he had more relevant experience instances of normal discourse explaining that well he has certifications experience but those are not comparative factors and that is the sole grounding for the idea that somehow he's adding or subtracting later in that same transcript it was  the closest that a parent gets to in this argument on the non selection is focusing on the comments so these are the two comments that dr militancy allegedly made he denies them for for purposes here will take them at face value that one thing on the outside is important appellant contends in and concedes that there is no temporal proximity for these comets right there well outside the three months and the way of explaining this may help people this is about one piece small piece of the larger puzzle the only problem is there is no other pieces to this puzzle especially given the concessions of the difference and qualifications what's also borne in each of these comments that is not a reference to the e o it's the ongoing dysfunctional relationship at the north ma clinic the last time dr back was there it did not go well she had to be removed because she had a very dysfunctional relationship with a nurse there so it's not at all surprising that dr melton ski as a manager and  concerns that she would seek to go manage the very same unit for which she was unable to get along with and to be clear point it was asked what really the idea that was related to the e o is that your inference or did he say that and she says well that's my inference of what he meant but even that's consistent throughout if you look at the declaration the plaintiff herself submitted in support of summary judgment makes no reference to the e o the cited quotation in her complaint where she create a genuine issue as to pretext short first of all if i had my druthers i wish that sentence wasn't in there but i think the district court got to correct in terms of the structure as to why it was him so the reprimand insist three different  specifications and again if i could back up for one moment the first two specifications appellant makes no attempt to defend indeed the bribery allegations third specification as judge he found there indisputable inappropriate comments the third specifications the only dispute and th appellant contends that because there's additional sentence saying there is this e mail you sent it's where you complain about pay and in there you say maybe some money changed hands it's accusing her supervisor of up or i and b three specifications and in that third specification the portion that is the offending language is the allegation of a brought by a subordinate to her superior officer sent by the way not just to dr mountain ski but forwarded to the of your argument is that the reference and specification three is a way of just referring back to her e mail correct of august twenty seventh because there were two on that specification three why couldn't a reasonable jury also read it as actually having problems with the fact that she raised this unequal pay client first of all the two reasons the first specified three to her unequal pay complying at which is the end i take it you're conceding that the unequal pay complaint is protected activity absolutely but what i don't concede your honor is that somehow engaging  protected communication immunizes you from making comments that are indisputable inappropriate in the words of judge i think in a very common sense level is true i see my time is and if you are we would  farm for summary judgment as well as the order of dismissing the retaliatory reprimand claim thank you thank you counsel extended their additional seconds or so will make it a minute thank you just a second comes once thank protect a complaints but that wasn't their intent well the jury is allowed to decide their intent when you have a piece of evidence such as that e mail that can be read either way then the majority is allowed to to make that decision and the defendant's denial of retaliatory