warning you're off this case involves a situation where an employee was fired excellent employee she'd been working there fifteen years gotten great reviews know the history of ever getting any write ups or anything of that nature and then she was fired she can point to younger male employees doing the same things you can point to male managers and supervisors doing the same thing but i think you say they're doing the same fan yes if they violate the code and also conceal their actions is that why they were fired if she violated the code and they most certainly did as well but did they conceal their actions in some cases i think that well i think the issue is what they did they did in open view and then she does the same thing and then she's accused of violating the code but the problem is if they're doing it in open view how is she supposed to know that this is something she has to report oh i thought some of those e mails are sort of telling between her and the other agent but i mean well before we can even get there i think we've got a tremendous i haven't listed them by name but the part of a small identifiable group that i've said something disparaging about them have been i just find them hypothetically speaking of course if the answer is yes this case has to go back to state court the problem is that the particular defamation that happened in this case or at least the first of many defamations is that after my client was fired but before stephanie warren wife that those people who were just fired for taking  that mr donovan said it so defamatory statement he's a party diversity gotta go back to state court now he also says can you give me a list of those people because i want to give them to my wife over at freddie mac freddie mac is the other big player in this industry i want to give them to my wife she's in hiring over at freddie mac she wants to make sure none of these people ever comes to work for the money so he has now made a statement of intent what he wants to do with people on that list of names and sure sell what i'm sorry sure as heck happens is my client goes over she worked at freddie mac before had great references new people over at freddie mac and she can't get a job over there because of the groomers circulating about her in the industry was there on the  or just a rumor that well that's the question we didn't she didn't see the list being handed from surely small to mr dollar so the implication is that mr donovan got that information from surely small proceeded with his stated intent on the film and doctor and when a person states an intent to do something in the future it is some evidence that the person actually does what they've stated they intend to do now the district court action in in saying there's diversity jurisdiction here is that because ms warren ms warren was fired about a week later as more and said well i don't know if i was on that list and when i heard that statement i wasn't on the list because i hadn't been fired and so the court said well if you're not on the list you weren't defaming when mr donovan made that statement and you don't know whether he ever put you on the list or whether there was a supplement to the list so that's not enough evidence to keep diversity in those warrants case but missing and it should have been fired at that point early so we think she's on the list mr donovan defamed her in front of ms warren when he made that request to this mall so he's a proper defendant at that point and because he's a proper defendant we've got diversity and because there's diversity it's got to go back to state court so that's the immediate problem now going to the court gets passed that if the court wants to talk about the merits miss sanded i can point to other employees who are doing very similar things younger employees male employees and yet they're not investigated they're not fired or disciplined in any fashion the classic example here  younger male employee mr capital she's approached and asked about some of these transactions and she says well you know other people are doing the same thing mr kapil still in the same thing a year goes by no investigation of mr cat so if the point was more if the concern was that mr spann eto was providing some back office assistance  well before i get to the back office assistance it had long been a practice that if you need more brokers in an area you can ask well established brokers hey do you know anyone in the area because i'm looking for  had someone in the area and mr spann eto testified you know for a bunch of years i would just out of the niceness of my heart i would help people train them get them on board in new areas it was commonly asked of me it was expected practice for the brokers to make that request of me and i finally decided you know what maybe i should make some money maybe i should turn this into a business so mr spinet oh goes and talks to a vice president mae and says hey i've got a business idea for you a lot of these real estate brokers out in kind of rural areas they just don't have the wherewithal to meet all the rules and mae's business interests are protected not going to cost you a dime we'll just help them out and all of that all of that is worked out in the details between us and them and bought said it sounds like a great idea videos posted on some sort of fannie mae side it's not clear whether the public side whether it's a private site but he's now the model employee to to show all the other people such as misandry age in terms of what's good and right well turns out that video was filmed with a property in maryland mr smith that is not licensed in maryland is licensed in virginia so if it's completely improper for mr spinet o to be doing any kind of work showing around people in maryland because he's not licensed in maryland then why are they putting that up on a video a as an example for him to do that mr spinet or have actually openly advertised back office services and conventions that these people were going to mr finch was also going out and openly advertising back office services in the testimony is clear that intil roughly august of two thousand and twelve no information no training had been given to any of these people that any of that was improper so why is there any problem of concealment if  there's no training that what that is going on it is wrong now the moment some question was raised about this the senate immediately goes to her manager and says well hey i was doing this is thirty thing wrong with it so th evidence here is that there's something else going on so the war here isn't it's not pretext plus it's just pretext if we listen to the reasons given by the employer and you say well that just doesn't fly just doesn't wash that's good enough that's pretext there's another example of an employee a director named peter porter monica mr porter monny was also dealing with jonathan spinet are in fact m was asked to prepare brokerage price opinions and to to even provide i believe some training services there he was never licensed in illinois so again mr porter mandan put him on his name was provided to the investigator in this case the investigator never contacts with money never puts him under investigation mr porter money has never disciplined in any form or fashion so if what my client was supposed to be doing was somehow some so wrong we had yet to hear an explanation why david box or people who imani were not likewise disciplined so perhaps you can say well there are managers but the code of conduct the in particular conflict of interest code says managers are held to a higher standard not a lower standard so again that the challenge here is why weren't they be if the properties aren't kept in proper repair you get a c and so forth and so miss sanish provided some of that information to mr spenlow from time to time there's testimony of the people that it was no testimony that there was any harm that ever came from it  in terms of some of the other allegations you know she's accused of very serious conduct she is accused of the centrally taking kickbacks that's the implication that's created and yet there's never any evidence that she received any money or any benefit from this or spin out of for any of this so there's no evidence that the properties weren't properly maintained the whole purpose of asking mr spitzer to begin with is he had an excellent reputation in the industry for taking care of his properties so there's no there's no evidence that because he used or set up some sort of an e mail account or phone number so that things would be routed in a fashion that would  his assisting the management of the properties there's nothing improper about that i asked marsha peters she was another manager in the case is there any problem with one of these brokers hiring an answering service or you know when you hire an answering service the call goes to them not to the desk of the person and no there's no problem with that you don't have to ask anyone's permission to be able to do that i mean ultimately the broker is going to be responsible for the answering service doesn't do things right but that's that's the point is you got the contract with the brokerage and if they go get assistance it's perfectly fine if they go get an accountant to access some of these computer code that's perfectly fine if they get associates in their office all using the same haskel that's apparently fine as well so it's a situation where there's there's they're coming up with all these contrived arguments to justify something but they're not enforcing these requirements uniformly we've got mail managers that are doing things far worse if there's something wrong with this program then why isn't david box who signed off with that with johnson's been out on the propriety of this whole provision of back i probably didn't do a very good job of pronouncing your name so free to correct me if you actually did a very good job i doesn't dispute that she concealed jonathan's been at his involvement in the actions that ultimately led to return a nation she doesn't speak of them the gist of her argument is that she believes the enemy is reason for initiating an investigation into her as well as twelve other people both men and women both under and over the age of forty she says that was fundamentally flawed but that's not evidence of age or gender discrimination that's just second guessing pinney means business judgment why don't you go into those numbers for us about who was disciplined and walked age or sex they were short and that is included in our briefing your honor but there is a chart that we've included in there and what that shows is that four individuals were terminated because there was a finding that they had concealed information leslie arrington was the decision maker she was in the investigations unit she by the way is a woman over the age of forty she is within a couple of months of this and it is age and what she did was when all thirteen when all the investigations were done she placed the information into buckets if there were no policy violations those individuals weren't disciplined if there were policy violations but there was no evidence that those individuals had concealed information then they were disciplined and there were three of those individuals let's see gina just men is a woman over the age of forty there was no evidence of concealment so her employment was not terminated surely small a woman over the age of fifty one no evidence of concealment her employment wasn't terminated and brian could crow an individual male under the age of forty no evidence of concealment and his employment wasn't terminated and it's important to note that misandrist doesn't challenge the veracity of any of those investigations all of which are included in the record she doesn't challenge she doesn't point to any evidence that they did conceal information and were treated differently as a result with respect to individuals who were not terminated who were in the first bucket there were both men and women both under and over the age of forty for instance a mere baby was male over the age of forty when the brooks a woman fifty five years old her she was found it was found not viable so with respect to terminations four individuals went into that final bucket that's the final bucket where there were policy violations and there was a finding that they had concealed information three women and one man so again both men and  terminations decision was based on a finding that those individuals had concealed information and as a result violated essentially the trust of many men and once that's gone you can't get that back what leslie arrington said and this is in the record at page  eight what she said in her testimony was the fact that she sanded in gazed in these engaged in these misrepresentations and this masking conduct in and of itself indicates that she is an employee to whom the company cannot rest trust and trust is an important and key component that was her thinking when she made the determination that individuals for whom there was evidence of concealment that there terminations that their employment would be terminated and there is substantial evidence in the record your honor that miss and it had in fact taken steps to conceal information there's an e mail that she sent to mr spinet zero where she she had been asked to provide a file to a manager at fannie mae relating to a case that he was involved in or unbeknown to fannie mae though because fannie mae thought it was a broker of record in montana and what that e mail said was in this is it in the record seven thirty six are you in any of the correspondence don't want her to see you at all in this when she starts digging and the record at seven zero one to seven o two reflects that the her being referred to there was marsha peters the manager  response said i need to take a look at it i think i might be hold off on sending it to or in sanded responded in that e mail ok i'll hold off evidence of concealment there's also evidence that she didn't tell fann montana brokers raise concerns because they thought fannie mae was using an outsource are in montana that's a circumstance that samad herself said was a broker's worst nightmare that e mails in the record at six fifty eight in response to that she told spinet didn't tell fannie mae she told spin it or that we might need to talk about how we do business in montana if everything was on the up and up if there was nothing that she needed to be concealing here why was she hiding it in this manner that is again the issue of trust that arrington pointed to and that's the reason for the terminations decision now counsel has told you that what spinet those activities were perfectly approved by  an opportunity to be evaluated and said and i'm quoting that sounds like a great idea he never said that that's not in the record what's in the record is that there was a meeting with spin at a worse than it floated the concept of some sort of a consulting business and box said that sounds interesting but spinet or acknowledged during his deposition that he never told box about the key factors of this consulting thing that he had set up that were the issues the mortgage fraud investigation was focused on and that was the phony e mails and phone phone numbers that they were using to conceal their involvement with fannie mae so fannie mae would go into montana for example which was the area that sand it was in and under normal circumstances would contract with a broker in montana and that broker would be responsible for handling the area properties in montana in a particular region and there were a number of policies and procedures that that individual needed to follow and that was important if any may because fannie mae although publicly traded was in conservatorship at the time and continues to be in conservatorship at this time so transparency is critical what's been eto was doing is he was behind the scenes contracting with one of these brokers the broker would get approved by fannie mae but spinet zero would do the approval process with the assistance of sandwich and would set up a phony e mail and a phony phone number so that all contact would be with him not with the broker see indigeneity that fannie mae had absolutely no idea that was happening that undermined our audit trail with the immense system that undermined our trust in the community and that created an impression with respect to the individual who is concerned about outsourcing that we were giving all of our properties issue we were showing favoritism to a broker giving them all our properties and letting them dole them out essentially setting up a concept where you had to go through him to work with us which was exactly the opposite of everything that we were trying to do with respect to our property that's why mortgage fraud investigations concluded that that was not an appropriate thing that's why mortgage fraud investigations referred individuals for investigation they looked for individuals who had worked with them spinet oh in the context of blackhawk using these big emails and phony phone numbers now she points to peter porter monny as a comparative or i think it's important to note that porter monny is actually four or five years older than her which completely undermines the age discrimination concept of this case more importantly to mani was involved with spinet zero in chicago with a company called redline realty not blackhawk there were no fake emails the no phony phone numbers he was an owner of readline realty and that was transparent that was in the enemy's records so it always knew who it was dealing with there was nothing covert the burden in this case was on  standage to establish discrimination that was her burden she always had that burden showing that she disagreed with fannie mae's business judgment or that she thinks fannie mae was out to get spinet zero which she said she said that she thinks that this was actually just of the against the netto and that she was just collateral damage saying that she believes her terminations was her response to a misconduct none of that description demonstrates discrimination it doesn't meet her burden the undisputed evidence shows that the enemy had a legitimate nondiscriminatory reason for her terminations that she violated the enemy's policies and that she concealed information she hasn't met her burden of showing that age or gender discrimination was the reason i want to turn briefly to the  here and i want to begin by pointing out that the tightening that the plaintiff is in to his the misandrous has indicated his is critical here the timing i agree is critical but the testimony is very different mae became aware that this case was removable when ms warren testified during misandry just arbitration there was an arbitration that took place the week i believe of september twenty second ms warren testified on september twenty fourth of two thousand fourteen and what she said at that time was that ms sanded even if you want to assume that this so called list existed even if you want to assume there's no evidence that there was actually a reference to specifically misandrist taking kickbacks even if you want to assume those things and i don't think they were and i mean the record does not support those when you look at it but what ms warren testified was that even if this so called list existed there was no way in this and it could have been on the list in fact because she had knowledge that her conversation about that list that so called list had taken place two weeks prior to her terminations her plan was terminated on february first two thousand and fourteen on a friday employment was terminated the monday before of the same week so within four days of one another there is no way if that list was discussed two weeks prior that missy indigence name could have been on that list that shut the door to the possibility any possibility that anyone could come forth with any evidence of this alleged defamation claim i want to be clear that the record is is absent any record any evidence of that defamation claim but that completely shut the door and as a result that prompt proper removals but the second is to make sure that there aren't hasty improper removals and what the court said in that case is that it needs to be unequivocally clear the evidence supporting remove billet he needs to be unequivocally clear so there is been a suggestion that my client has improperly concealed things from her manager the problem with that argument is marcia peter was was not her manager marsha peters was another employee at fannie mae not based on the wrong factors whatever how does this record tell us anything about age or sex discrimination so again by posing counsel is trying to lure the court indicates that this terminations was on the basis of age or sex and if you live the fact that actions were taken against other employees both above and below forty and both male and female if i show pretext pretext creates an inference of fact that there was discrimination so i can point to employees who were doing or setting an example that is evidence of pretext and were not disciplined for example the testimony with regard to mr box mr fox sits down with mr spin out of mr box here's this business plan mr box gives his consent there's some dispute as to whether all the details were disclosed but mr spinet it was very clear that it was it was very obvious from the description of what he had planned that sharing a their computer access information was clearly contemplated by mr box is not disciplined so i think the jury can reasonably infer from that if it's ok for mr box it's somehow not ok for his sandwich that's discrimination and the argument that well mr box is different because he's a vice president well if you go and you look at the particular policy document that they say was violated conflict of interest it says that a vice president offers certain is supposed to be held to a higher standard not a lower one so if this is something that was expressly approved by mr box that gets this whole thing going if there is is evidence that there was no training on it of any of those there's no training that somehow receiving a percentage of the property is improper there's no training that that using an answering service is improper if there's no training that using an email address that will automatically forward things to mr sparrow because that will help him handle the properties faster there's no training that any of that is improper  jury can infer that this is a pretext will argument and the fact that all of this was set in motion by a white male mr david box who is younger that is evidence that the this vendetta against mr spinet oh is what's going on here there is evidence that when you when you start pairing up what's happening with the employees that there is a disparity based on gender again mr capriles was doing the same thing working with mr spinout oh mr tapper was reported at the same time that my client was investigated and that report of wrongdoing just sat there for a year mr capital sending messages or are telling my client look i don't get why you were fired and miss mole was reprimanded ms warren was fired and nothing happened to me i did the same thing carol you're talking about brian todd he was found not to have concealed his actions those right in theory after they finally investigated him after a year because of the lawsuit because we kept pointing to him as an exempl but he was reported when when they sat down with my client they just didn't do anything because he's a male that's the point that's your evidence of discrimination there may have been other things going on with mr spenlow but the point is when they when they go to a cutting people out there discriminating in terms of who they get rid of and they're certainly not holding some of these male managers that were right in the center of this extent exhibiting the same conduct so that my client didn't realize there was some policy violation or alleged policy violation going on here all right thank you mr