rose up from from being a factory worker all the way up to being a charming ensuring she was an h r manager for seven years before her terminations she got great reviews performance evalu bonuses promotions until tim parris became the plant manager in two thousand and nine at that point he began discriminating it's women and african americans those with worker's comp claims disappear with disability she began complaining to him in opposing what he was doing and interspersed with those complaints and those oppositions there began to be negative performance reviews increased scrutiny and the like finally after all those oppositions he terminated her from her employment in two thousand and twelve at that point he replaced her with a male who made eleven thousand dollars more  year than she made and doing the exact same job in miss ross is gender discrimination claim the court found that there were no similarly situated male employees in we would respectfully say that this is not true f r s itself in a docu that we presented to the court listed miss ross's comparables and it was for the purpose of before ten pairs arrived in bringing miss ross up to the level of the comparable male employees they were all in grade nineteen and the plant manager himself testified that the only difference in their salaries should have been experience and miss ross had more experience than they had there were several men and two women and grade nineteen all the man made more than all of the women another mistake that the district court made gobs of comparable person replacing and ones that are those compare your honor we would say yes and the reason is because tim pierce himself said that there were a group of managers who were directly below him they were all would but they both may make that more room on i see your point compare airable and the level of the job that they were doing the importance of the job that they were doing but different positions but in looking at it that way it leaves miss ross without any kind of protection under the tennessee human rights from drugs are unique some jobs are unique and are so good bitch versus goodyear tire instructs us that when they are unique that you must stretch the the rule out a little bit more and not apply it that that narrowly another mistake that the court we feel the court made in the gender discrimination claim was to look at each of these adverse employment actions in isolation were instructed by the six circuit in thurman be yellow frank to look at these like a whole play not like has separates things in problem for her gender discrimination claim she's able to show that similarly situated males were treated better than she was and she's also able to show that a male replaced her and in looking at the male that replaced her the court found that they were similarly situated even though randi good came in and replaced her as a gauge our manager making eleven thousand dollars more per year than she ma houses argument here is that randy good was doing a different job but there's been an abundance of evidence showing that they both did the same job they both were h r managers at the lexington plant and served in that capacity in some respects at other plants as well perhaps the most interesting thing about the court's ruling and what we feel like is probably the biggest  in looking at the pretext of child nation and looking at the pretext the court was not real clear that that whether she had shown pretext or not although it said even even if she's able to show even though she shows belief into the argument here respectfully we would say that what the court did was to apply the bare honest belief rule which is not the circuits rule the circuit has a modified honest belief rule which requires an investigation and reliance upon particularize facts none of that was shown here in fact f r s never mentioned honest belief never showed an investigation never showed which backs it relied upon at all this court has instructed us that it's the employer who has to make a strong showing and that this court cannot make a blind assumption that probably the employer had an honest belief about it that's not the way the honest belief rule works here the question is was there enough evidence to get to a jury i guess probably the most controversial thing we put in our in our brief was that the honest belief rule as applied by the district court violated what reeves be sanderson said about pretext plus and then later what this court said in great britain versus big binder that you can't look at the honest belief will and to say that it is in addition an additional step beyond pretext to a jury trial that's enough to get to a jury trial and respectfully when you read the cases on honest belief room you come back a little confused as to whether is the honest belief determination a part of the pretext or is it afterward we would say that it needs to be a part because otherwise it violates the rules set down in the supreme court decision in reeves the sanderson  retaliation claim she put forth a chain of events this is this is a situation where it wasn't like one of it caused her terminations this happened over a period of about three years in fact mr perez himself when he testified said it wasn't just one thing it happened over it was a chain of events and in his explanation he pointed us back to the two thousand and ten and the two thousand eleven negative performance reviews and he said that's why i terminated her you can see the reasons in there so that that makes you see that the plant manager the terminator himself said that it was a chain of events that happened over a particular time the district court rejected our chain of events cases that we presented and looking at it that way and did not find any kind of temporal proximity and found might be a better way to put it performance through new why were those why are we to doubt the accuracy of the fairness of those reviews as a basis for the terminations even though she might have done well on the prior management i see your question is if she could have started failing afterwards when we're not meeting the expectations of the  management in our brief we were able to we question mr pears about exactly what were the reasons and we looked at the reasons in the reviews and took each one of those reasons and we presented sufficient evidence to rebut or to completely using correct why wouldn't that be of sufficient basis for an eventual letting your client go even if even if you knew in your climate have disagreed with this reasons she that she was never will ms ross is able to rebut the reasons for example in the safety one of the reasons was that the safety program was at risk but the evidence turns out that the safety program was the strongest and that the accident numbers were the lowest under her at ministration of this program and so you'd look at what temp areas said about the safety program that it was failing under her and you look at the evidence that requires he if he is going to assert what had an honest believes that she was terminated because of her gender because she simply did not identify any similarly situated males beyond that plan to fail to offer any evidence that  decision to terminate her employment it's legitimate nondiscriminatory decision was pretextual in your honor if i might direct my comments to your question you all have hit the nail on the head in two ways one miss ross failed to identify any similarly situated males in terms of their job requirements their skill set their managerial authority she had been a three materially adverse actions one she was paid less than similarly situated males to she was subject to heightened scrutiny which which resulted in a negative performance in three she was alternately terminated plaintiff fails to offer any evidence that any similarly situated males to her were paid more she doesn't identify any males who had similar job requirements similar managerial authority the same supervisor so in essence the court was left with nothing to compare her to and as a result could not find resources area he had taught several classes both in the military and during his tenure at various manufacturing facilities he had been in a char professional in the manufacturing segment of the industry for several several years unlike mr ross who had been i think age or manager for less than five beyond that the job changed the job had changed considerably in early  thousand and twelve late two thousand and eleven f r s decided to expand the role of the h r manager and make it a company wide human resources manager he was in charge of company wide recruiting and of course human resources management ms ross was only responsible for the facility in lexington tennessee which involved the bathroom hundred to three hundred fifty employees and she also had some attendant responsibilities for a facility in ocala florida mr good however would be the company's h replaces the actually there was a new job created for him that's exactly right there was a new job created for him or with him in mind in late two thousand and eleven terminations of ross how are they related or not related to your honor if our us decided to expand the role of the h r position to paris and mike lazar decided that they needed someone who had the requisite experience to take on such an expansive role miss ross had only been h r professional or an h r manager at the silty and lexington and had really no experience as a  corporate manager with mr parris determine was is that based on his past experience with ms ross she lacked the requisite skills and qualifications and experience to fulfill this new expanded role and he base that on several things one as appellant mention was miss ross is poor work performance in the safety area but there were many other areas as well she demonstrated a lack of particularly well he was disappointed with the way that she did that she allowed employees to take more leave than they were a lot of she allowed to take intermittently for what he viewed to be invalid reasons so there were several things several reasons why pierce did not think that miss ross lacked or had the requisite experience and skill set to perform this new position in those reasons are outlined in detail in his favorite two thousand and eleven performance review of miss ross and of course he identified those reasons and his deposition ms lerner brought up the safety performance and that's an important point because it's it's not any less safe than what it was before this latest in your it's not any safer than what it was or safer now than what it was during her tenure and that was primarily based on injury numbers and there's no dispute injury numbers have not gone down they've really not gone up but that wasn't mr paris's reason for deciding that ms ross performed in adequately in the safety area what mr paris expected her to do was to put together a comprehensive safety program that involved development of training programs that involve the development of investigation techniques and he wanted her to improve communication among the safety managers in the plant put forth any evidence of pretext that those were objective is that mr pierce had she put forth no evidence that those want to inject is that were communicated to ms ross so for her to  use pure numbers and to say well the plant was safer that's not adequate evidence pretext because that doesn't dispel or undermine mr pierce's reason for deciding that she lacked  experience in the safety area and that she did not perform adequately as far as retaliation your honor we believe that ms ross the not engage in a protected activity she did cannot establish a causal link between any alleged protected activity and materially adverse employment action and as i mentioned she cannot establish that if our assist a citizen to terminate her employment were engaged in any materially adverse employment action was prete ross did not engage in a protected activity by alerting her employer to potential state and federal violations of employment law for an employee to engage in a protected activity they have to step outside the scope of their employment in engage in a blatantly adverse action to their employer the interests of their employer mr ross never did that miss ross while she may have complained or raised concerns about issues that she thought could expose the company to violations of law she never stepped outside her employment she always acted in the company's best interest which she was attempting to do is to minimize the company's exposure she never advocated on behalf of employees she never advised employees of their statutory rights she never threatened to go to an outside organization and certainly never went to an outside organization s behalf of minorities he went far beyond the scope of his employment to assert to some extent the statutory rights of those employees johnson mr johnson in that case actually put pen to paper wrote a memo expressing his concerns and his worry that the university was not committed to its affirmative action program and not only did he put pen to paper and write that out he published that piece to all cabinet members of the president's administration so in essence he made them public he didn't do it his conventional chain of command and soon that memo to his immediate supervisors but he felt it was necessary to exert pressure on the administration to get them to change to do that he felt he had to go public mr ross never engage in any type of blatantly adverse actions such as that miss ross simply communicated her concerns during media supervisor which was mr paris in an effort to minimize the company's exposure to litigation in law ability she always acted in the company's interests in that respect of the situation of kin thoughts and i think demonstrates or illustrates this point well you might remember from the breeze that kinda hurts and was never in american employee who was ultimately terminated for falsifying his time records essentially he clock in late the plant come back and clock out well testified that it was in the this interests of the company to terminate mr hudson so it's clear that she is acting in in the company's interest had she stepped outside the scope of her employment and taken a p adverse to the company she could if threatened to go to the deal will or the e e o c in that regard she could have advised mr hudson that he had statutory rights and he should have veiling self of those rights she could have threatened to quit she could have elevated her concerns even to the c e o of the company she never did any of those things so really what she continued to do was her job as an h r manager alerting her employer of potential violations of state and federal employment law and as a result she did not engage in protected activity mr ross also fails to establish a causal link between any alleged protected activity and materially adverse employment action miss miss ross fails to establish the requisite poor proximity and all but one of her alleged protected activities but she tries to go none the less this series of events that she refers to really is the fact that that mr paris ignored her it's what it will stand that does not rise to the level of blatantly negative treatment that this accusations against the employer or an employee and also that employee was subjected to severe discipline for run of the mill dress code violations so it's clear in that case that the employer had the requisite retaliatory intent whether or not the plaintiff could establish him poor proximity between protected activity in the adverse employment action the other case we cited in our brief is more b cook a welding same type of situation in that case the plaintiff was subjected to severe isolation by the employer and also was disciplined for offenses that other employees were not disciplined for in this case ignoring misra simply doesn't rise to the level to  to indicate or to demonstrate retaliatory intent and as a result her lack of tim poor proximity is fatal to her retaliation client lastly your honour's i've discussed pretext argument miss ross fails to put forth any evidence of pretext any evidence that the reason legitimate non reason provided by a forest is mistaken trivial or food so the honest belief rule actually does not up through the ranks there's no evidence that mr good had corporate wide h r experience in fact he had had jumped around from job to job to job and had stayed at any place very long he'd been terminated from two of his h r positions he might have been an h r a little longer than ms ross but not as good that the manager he was only a few of his positions were manager positions also we would encourage you to look at the offer letter to mr good that mr parris sant that offer letter says that he is going to be with the h r manager at the lexington plant and have some other duties at some other plants and if you look at p t ross's personnel file that's exactly the same wording that you're going to see in her personnel file as well that she's the h r manager at the late seating plan and that she had the h r duties at other plants as well but it's really not until we get to this case and we're defending this case that we say this abroad and you don't see evidence of it in the record that he had a more broadened job description then pinney ross had your honour's the discriminatory atmosphere evidence that we presented and the other x evidence that we presented was not considered by the district court that evidence showed that women across the board were paid less mr paris terminated several of them he demoted several of the women brave women came forward and testified this and so when you look at what mr parrish thought of ms ross and her capabilities we would suggest that his thoughts about her had to do with her being a woman and that that was exactly what this gender discrimination case is about if you didn't believe she was capable he must not have believed that any of those women  there were capable and he admitted he hadn't hired a single woman in the any kind of upper level positions since he had had been there in the scope of employment will this court had it right in that the johnson case  the cases that the defendant cites are reliant on relying on the f l s a law and that law is to be applied very narrowly that law has no opposition cause it only has a participation clause and we are instructed by this court that title seven and the h r a is different it does have a an opposition clause and it's not to  be applied as merrily we presented case law to this court that even if you have a contractual duty to oppose if you oppose and then you're retaliated against for opposing that's what title seven is all about so even if her job is to voice concerns about the legalities if she does that is a part of her job and then she's fired for it that is exactly what title seven protects your honour's in this case we have clearly shown prima facia cases for discrimination way in terminations for retaliation and also in our whistleblower claims we've come back and we were about it every single one of the reasons that tim pears gave for firings ross clearly rebounded each one of those then we have shown additional evidence a lot of additional evidence of discrimination against women at this plant that the court did not find to be relevant but it but it can serve as circumstantial evidence it does not have to coordinate with time and place and person if there is a general atmosphere and this is more than a general atmosphere this is discrimination against women other women at at this plant stop it has to be evident showing a general pattern of general of gender discrimination and that's exactly what this does and it can go to motive and intent and it was not considered at all by this court so we've shown additional evidence in addition to rebutting the nondiscriminatory reason and we agree that the honest belief was not applicable for a different reason it's not applicable because there was no reliance on any particular auspex no investigation nothing that this