subordinates as well as computer evidence could potentially establish deviations in how the agency conducted industry inquiries so there is a she did not identify specific people she did not know specific manderson been treated differently but allegations of rude behavior in fact she didn't leave  yes quality systems numbers yes it's a she didn't know any specific managers but by discovering by by conducting discovery what we hope to establish with you there were some others look at the  of the workforce but also help in fact to prove just her point which is she was one of the only female minority managers operating and as a manager in the us achievement mission officer because she was this she was really one of  you know she believed that she was being treated differently and remove precipitously for a position based on just comments or or alleged behavior so no she wasn't aware of any but we believe that the evidence of the demographics as well as any the fact that there were others that are witnesses who were directly are privy to offensive racially engender charged comments such as women cannot make we rational decisions because of their hormones that she that this was an  boys club the office of the chief information officer in that there were two things holding her back that she was a black and female so you know this was not a case where there was no evidence of direct offensive racially and gender based comments that would there would certainly support on the on the discovery that was saddam's case and that's why the judge abused his discretion it is simply not we did ignore that evidence which the judge which the agency doesn't even qui the judge denied discovery in this case based on a misapprehension of the record that's that's another indication for you all that that he abused his discretion he if you read it in his decision was simply that  interviewed were people that the manager the less responsible management official told her to to interview those people who are only white males can i ask you a process question the discovery that you saw was related discovery that was denied related to just a just that discrimination claim because the witnesses that we saw to the polls and the comparative evidence related directly to the reasons for removing her from her position you are in so so what however the record shows that prior to her ear complaint protected activity the plan the managers planned was to demote her to the position of deputy which would have continued to we allow her to work as  case here and the judge failed to get it pretext he failed to examine the evidence a pretext that existed he didn't touch a pretext which was an error but in terms of the prime official case the causal connection there was only two there was only a two week period of time from the protected activity until the change of plans for our client so not only from her perspective she expected to come back in ninety nine days all right so the judge you know i think this ever has a record when he says that there was a course that was set into motion that was an altered by the you know activity that is simply not true if you actually examine the record totally different things happened here after your activity w please the court man he was dr rogers and i represent the united states i'd like to begin by addressing this issue of these two different phases of response to the appellants behavior so  there is this inappropriate behavior that they're responding to or what they believe to be inappropriate behavior the first the first action it's taken is to transition her to a deputy position the reason that they have or don't have to belabor this or things like shouting calling people liars demeaning people and making sexually inappropriate comments ok so after that w have is the june change in which she's transition into another position with respect to that and there are reasons given for that first of all is we don't want interference with the new chief everyone  department is showing signs of being more stable more focused there's better morale now they state that and miswrote states that there was a hostile environment before in the meantime you need to learn how to talk and get training something for a case to go to the jury i mean why why is it the only conclusion that a jury could find especially since she was transition we to a new position where she was supervising people will she was a problem supervisor and that's the reason that you're moving her and wanted to move her to another position supervising well as i mentioned before there is that second set of justifications but at the same time as we know in our brief the court found that there was no issue of disputed material facts and explains that  there were in fact the facts that have been laid out and the defendant's statement of tiriel facts which had gone uncontested in this particular that particular case in a for this court we also have the plaintiff not actually contesting what the united states has alleged with regard to three different types of behavior at no point anywhere either in the record below or in her briefs that she ever argued that she did not make or she doesn't actually do it on a convincing basis that she didn't make a sexually inappropriate comment in response to an employee who hadn't lied and that she also did not retaliate against this employee that is not challenged other than iraq what was also not challenged is that the initial playing with respect to her was that she would be made the deputy and we would agree that the plan did change so the question for us is especially since the plane changed very quickly after that happened during a time period where we said that  and what we have to conclude is that the agency did and she has done nothing to show that the real reason was discrimination you would concede that the presumption of discrimination lies with this short time period right that three month time period  the problem is that fundamentally under brady she just simply hasn't even made a dent in the presumption in this case because there's nothing contested that the agency had a basis for what it did and that is that whole slew of reasons it's just she doesn't even contest that when i was on the district court i tried lots of employment cases in the jury instruction in law use which came from a case on the third circuit in our circuit gave an example in the example was that if if the parties discharged because they stole pencils they took pencils from the office supplies and they took them home and that was in violation of the policy about you know not making personal use of office supplies that could be permissible basis for discipline or terminating but what if have a reason to believe that the person violated the policy but still have a case to go to the jury about whether or not that was the real reason no it was you know the classic example in this jury instruction was like giving a bad jury instruction but i don't believe so in this case she stole the whole store of pencils and there's no evidence any mail  judgment five minutes later so what chance did she get to have any discovery here well that's her argument that i'm just pure reffed of any chance what is whatsoever which is difficult to swallow in light of the fact that there were the record formal investigation at thirty seven sworn witnesses so someone who undergoes an administrative process doesn't have the right to take civil discovery under the federal rules i wouldn't agree with that and fact i mean we have do we have a different set of standards for when they can get discovery than somebody who doesn't get go through the administrative process absolutely not and actually think that it isn't why are you arguing that she should be penalized or have to show some higher standard because there were some records that were available to her from the administrative process i'm not making an argument about the administrative process i'm making an argument about the motion for summary judgment standard there was there were five hundred pages of records that the united states placed on the record for its motion for summary judgment regardless of where it came from the plaintiff included seventy five pages of her own record so the court says i have all this and on the issue here what we have is did the court make an abuse of having abuse ok so let's go back to my jury instruction question suppose then the district court would be entitled to say she records that the government provided in their statement of facts shows she stole pencils and they believe she stole pencils what the records adult show is whether other people so pencils in work discipline says i want information with respect to demographics culture standards she says but she says she wants information about whether other people were disciplined for similar reasons but it's not she says that but isn't she if not as you direct me that those other people include pretty much every protected category will mean that's why you know you have limits on discovery maybe the fifty sixty affidavit was too broad but does that mean that the the court has to the way that they're supposed to exercise their discretion is to say us for too much discovery so you get none well the answer to that would be that the court that there's an abuse of discretion standard here and essentially what she's doing saying to the court is i'm not going to tell you what exactly it is what i'm looking for so why don't you do the deep dive into the record and then tell me exactly what i can find that might be helpful instead she says tell me everything with regard to all relevant times all these different categories there is nothing that narrows this down to who's dealing pencils if there are no further questions i'll take m that it needed additional discovery including witness depositions they were unable to be taken before to be able to effectively address some of these allegations that she was such a bad manager she didn't deserve to be in this job representative will rely heavily on and some allegations that our client committed gender discrimination against another employee if you look at the testimony of the of it's our specialist she herself says that didn't matter to her that was even part of her investigation so the government is reliving this record make new arguments that it never made before and which don't get to the bundle point here which is the judge in a hasty rush to judgment close the doors to justice on this cruise there was direct evidence of gender and race bias here from witnesses who worked at the same managers who could who who criticized or complained about her being rash this is just not a case we're denying we have discovery imagine and the government didn't even bring forward any any any evidence or argument that the discovery to take a barrel was going to happen within the record yet we didn't have the evidence wrong the government refused to produce computer evidence to govern never even the we took discovery in the e e o c process and we did we did not obtain information about the actual demographics but that was only one aspect of the information we sought and that includes information about about a computer similar situation employees that were disciplined so i i would have what i would what i would urge you to to to to consider here is that she would tonight the opportunity to pursue a