thank you good morning your honour's may it please the court my name is kirsten doolittle and i'm here today on behalf of the appellant denise spence in two thousand and three denise spence was hired by crowley to work as its warehouse manager and back she was the first and only employee that crowley hired when it decided to open a warehouse operation here in jacksonville twelve years later and at the age of fifty eight crowley fired misspend several days after her request for leave to care for her adult daughter who was treating with cancer on these facts mis been brought claims under f m l a interference in retaliation an associate association disability discrimination claim as well as age and gender claims the district court below crowley move for summary judgment arguing that she was not terminated in violation of the statutes but rather she was part of an october two thousand and fourteen layoff and that she was selected for resolved genuine issues of material fact also in crowley's favor and finally the district court failed to apply the law of the eleventh circuit and evaluating miss been supreme a fashion age and her gender claims on the first issue crowley drew inferences on actually the most critical issue in this case and that dealt with the timing of his decision to fire miss benz the district court ruled that miss binns f m l a n eighty eight claims could not survive summary judgment because crowley had decided to terminate miss benson october two thousand and fourteen but she didn't make a request for f m l a until january two thousand and fifteen that conclusion however was based on an inference that the just the district court drew with respect to crowley's decision the district court relied on an october two thousand and fourteen email from miss been supervisor you should  president and if i may the e mail stated sorry we do have enough to let denise go at this time we will proceed tomorrow if you don't have any opposition to the determination in response crowley's vice president wrote let's discuss will call you misspent was not terminated the next day me the reasonable and most plausible and friends to be drawn from that email is that the vice president disagreed with misty is his recommendation to fire miss pence and told her not to instead the district court drew the opposite and friends that a decision was made in october to fire misspen honor it says that all the court although the court should review the record as a whole it must disregard evidence favorable to the moving party that the jury is not required to believe and give credence to the evidence favoring the non movement as well as that evidence supporting the moving party that is uncontradicted and unimpeached at least to the extent that it comes from disinterested witnesses just like a jury would not be required to to credit mr larkins testimony the district court and evaluating the summary judgment motion it is that court position reviewing the summary judgment would have to conclude that no reasonable jury could fly and land that the decision was made in that is true your honor i believe that the standard would be that while a reasonable is e mail said i'm recommending that this happen i'm going to do it tomorrow unless you disagree she wasn't fired the next day and so you'll only evidence but in addition to that we would submit that the record indicates that at no point from october until february and even prior to october and no point was misspent even put on notice that there was any performance deficiency and under this case this decision and weaver and kilgore that's evidence of pretext if the employer is internally documenting in criticisms of the employees performance but is not putting the deficiencies after that there were only two e mails that are in this record in a which we're even aware that were in june two thousand and fourteen that were sent to miss bands and we would submit that those are not even those are arguably not even criticisms of her performance but even saying that they were nothing after june anything that was after june of fourteen until misspend was terminated in february of two thousand and fifteen those were internal e mails that were sent amongst to miss been spanish or and for which she was never placed on notice of any deficiency and this court has held that when an employer does that and doesn't place the employee on notice of a problem and then later claims that they were fired for poor performance in the face of a history a twelve year history in this case a strong positive performance that that's evidence a pretext sufficient to create a genuine a show and i would just reference the court terminating bans in january we don't know where the subject comes up again in january if there are any evidence of why they bring it up again your honor there you're correct the next time it comes up again is late january begin discussing scheduling the terminations misspend this took place within days of miss ben's number one her request for a week long a week last week of leave to travel to care for her daughter and prior to leaving for that for that week her manager miss morales asks spence do you think you'll need to take an additional at the mill a and miss benz were response yes i might within days of that discussion we see this january e mail string scheduling the terminations outside of that context no your honor there's nothing in the record to explain other than the facts that i just presented why they were having that discussion and your family claim is based on that time yes your honor and additionally on the timing no your honor but if i could just clarify misspend also took a month of f m l a and july of two thousand and fourteen and in her affidavit misspend testifies that in that entire year of two thousand and fourteen she had numerous just discussions of a continuous nature where miss morales would ask her if she would need to terminate miss benz in october two thousand and fourteen she wasn't terminated and she can you continue to work there i believe for nearly four months until she took this additional week of f m l a qualifying leave in january and wh miss diaz to miss marr alice and this was in about july of two thousand and fourteen around the time she took the month of up m l a and which miss diaz conveyed her concerns about the fact that miss benz was taking this month and her concerns about how that would impact things that was but to your point your question that was never conveyed to to misspent it was sent to between the two managers when they actually fired her lie off or did they say it was performance neither your honor when misspend was terminated on february the sixth she was told that she was being terminated for budget cuts and then if i i say or much related they just said no your honor there was never meant mention of her poor performance until a geisha ensued i'm sorry frank january february when they did do it they said oh it's budget cuts on texas who all took her job you made a promise so the fact that they didn't cite performance goes to your pretext yes your honor absolutely not budget cuts or performance correct thirteen crawly employees also being targeted for the layoff with with misspend he wanted to give her the grace of working through the holiday season again you cases we did the promise come back with a legitimate  i think the age and gender counts are the most easily disposed of there is no evidence of age discrimination in this case to show wage that has to be the sole reason for terminations there just they offer nothing other than the fact that she's over forty to show a discount i offered that she was replaced by two younger employees and for purposes of my question we've already held that you can divide the job up into two people and that still counts ok wasn't she her duties for assigned to two younger employees correct the position on the position of warehouse manager i was eliminated i'm stan but they assigned her duties to two younger male employees right as correct and that made a promise case according to the district court accorded that district court gave him credit for that but i don't think that's correct because that not safe to make the case to me why i'm wrong she didn't have both it was males they were younger she didn't have a pro was created because the supervisors position it was the manager's decision the managers position was eliminated and you have a other supervisor we also had cases where you say it's reduction in force but yet you still give it to all these other people and nobody else w off in fact it is significant that we mentioned the decoration mr larken one of the things he was given it was a severance worksheet the plan was to lay the the appellant off on october fourteenth twenty fourteen and mr larkin was given a copy of a severance worksheet this showed her severance pay for eleven weeks of severance was fourteen thousand one hundred dollars and her deposition ms benz confirmed that upon her being laid off she was given fourteen thousand one hundred dollars just as plant based on eleven weeks of service now as a as a starter stand on september thirty twenty fourteen crowley maritime issued a memorandum all its i'm just have to say what is the legitimate reason you say you fired her far and you're saying it was budget cuts and we never mention in january february performance to her is that correct that's correct ok because i think the case has a legitimate reason as budget cuts the performance issues i got the final written warning of may twenty two went off on f m only for a month when she came back she she met with the h r person energy supervisor she disputed everything in the final written warning wanted  file wouldn't knowledge any of it so that is in august in september we come up with the company wide layoffs the selection of ms benz for layoff was obvious based on the criteria jop performance which is part of the layoff policy as discuss he said let's wait until after christmas nothing changed between october and christmas now if the court were to find that the decision was not made in october by ms diaz then in fact it was made in january by january six is a holiday a puerto rican holiday three kings day that takes us out to the twelfth ms yes said she tried to match your schedule so she could be present t daughter is going to go into hospital she may be chemotherapy i may need to be gone at some future unspecified date that seems to be the basis for her retaliation and interference claims to sho proximity can suffice but for a referral a interference she has to prove that the a family request was the proximate cause and she just can't show that in this case i think the criteria was was always a warehouse supervisor under ms benz supervising two leads mr jeremy laurent came from pricing on april one which is about two months after  and he got what title supervisors well it provides her and he took over some of her duties and they get well her duties were to supervise the supervisor the supervisor was to supervise the they previously mr but the supervisors previously reported the warehouse to get a pay increase such as record tell us inside to do mr phelps got a pay increase i know he got a new job i don't know that your honor i think he was paid approximately sixty thousand a year well below what oh and when when when ms binns was there she reported to the logistics manager when her job was a limited logistics manager the job went to l crystal mason crystal mason the to supervise and reported directly to the logistics manager so that whole level of management the warehouse manager that position was totally eliminated that's why they were not replaced by these two supervisors she was not replaced by the two supervisors at my ask you this how do you respond to the plaintiffs that we should discount the is sanderson plumbing and what that court basically said was where you have a dispute between the moving party in the nonmoving party the court should not be credibility resolutions and the reeves case however the court from the jury could well find that the reasons given by the employer protect will they said the man was sold he could have come over in the mayflower but if you look at other cases price to be time for instance the court said to hold that testimony under o delayed it until after christmas a lot of the evidence corroborates that nothing other than the fact that she was not laid off until february and of course the e mail exchange that took place in january between  every four twenty fifteen is the date when they could both meet with ms benz so february's i'm sorry for every six was the degree to pon february for wisdom has been is came and said all right i'm going to need additional leave at the testimony deposition testimony i  believe morales and king and they has testified by deposition did they not they did what did they say about about this delay proceeded without her she just of the only did i think ms diaz really said is she was question about three kings day in puerto rico and she said the week of the sixth is still a family holiday so i didn't report back until the twelfth and two weeks went b it's not on the record why they could not get together but they they could not get together until january twenty sixth to discuss a actual terminations date but there is nothing to indicate i do with this e mail about mis coverage in the coverage was miss morale us who was a logistics supervisor had to cease your duty and spend more time in the warehouse supervising mr laurent in the leads which she did and it was during that time that ms morale is discovered that a lot of the same criticisms contained in the may twenty two final written warning were still happening they didn't have they didn't have the standard operating procedures they were having the meetings the people run happy didn't want to come to when this morale us took over the warehouse the whole month of july when she returned in august she said down with ms morales and miss king from h r disputed all the performance issues wanted to remove from her file they said no we're not removing this from your file so this is august when did that occur august nobody knows the exact date but it was early august so here we are in august when she sent out a half performance problems then september thirty is the memo to all crawl employees same gram layoffs she made herself a very obvious choice for layoff and the layoff criteria which specifically addresses job performance so the decision to lay her off in in october was made in october there was no point and if she's going to cut a lead no point in re addressing all these performance issues that she disputed anyway would never change so she was the decision made in october because mr lark was three or four emails that specifically address the performance problems or why she selected for layoff there isn't based on the timing it was around the time that the layoff was happening they didn't realize they didn't really address the performance problems in general no i thought in the announcement of the reduction in force that occurred in october i mean at the end of september that it was written as if the decisions had already been made in other words they didn't say we're going to be making decisions so we're going to be letting the employees know we're attention the case of foster versus bylaw thought plasma which is an eleventh circuit decision however if he did not mention the sentence that precedes the quote that he provided and that states quote a court should not generally grant summary judgment or a directed verdict based solely on the favorable testimony of an interested witness however if the testimony of an interested witness is inherently plausible and corroborated by other testimony that may be appropriate i would submit to the court that the other testimony it can't be testimony from other and trusted witnesses it has to be evidence from disinterested witnesses or documentary testimony and  the district court actually found and that was a two thousand and sixteen eleventh circuit decision that the it was error for the district court to rely on the testimony of the interested witnesses regarding the actual basis of the reason for the terminations here that's what crowley is trying to do again is rely on the testimony of its interested witness to support the timing in the basis of the term contemporary absolutely if there was a contemporaneous that we have contemporaneous evidence of the decision to terminate misty has testified under oath in response to iraq tori's that mr larkin was the decision maker that she did not have that authority and that's why she was asking for his approval fact and in fact in tennessee district court decision the district court was faced with facts that are actually even stronger in the employer's favor than ours where the employer had actually made a decision to fire an employee before the christmas holidays decided to hold off on that decision and january the employee requested f m l a and two days later the employee was fired and the employer in that case made the same argument here we've already made this decision before the request and in that case the district court found a reasonable juror that based on the delay and i can't find it but i'm pretty clear i think i'm pretty close to it t your honor that is neither that is not spoken to in the record i would submit to the court however that mr larkin said that he decided to allow misspend to continue working unlike the ninety nine other employees who were laid off that he allowed her to continue working so as not to impose a hardship on her without any reason explaining why she was the only one given that benefit the e mail that judge hall pointed to the june two thousand and fourteen e mail when misty is noting her concern about this problem with misspent taking leave for pretax taking a family for the month just in conclusion miss been submitted ample evidence that from which the court could conclude and should have concluded that there was a genuine issue that should have gone to the jury they changed their reasons for why she was terminated they never brought these purported deficiencies to her attention in the six months following may two thousand and fourteen and miss vincent states that fact just like the plaintiff in damon versus the supermarket case the plaintiff flatly refused that those criticisms were ever brought to her attention and with a record of solid performance that's evidence sufficient to create a genuine issue for these reasons we respectfully request that the court reversed the district court's order and remand it to district court thank you thank you counsel the court will be in recess until nine am tomorrow morning