made even before the the the promotion for the d d i position you know was meant and we have met since actually that took place between the record where that i thought she first made the statements about angry apart from apart from race but that is not an issue for the jury to decide ok it is leaving that aside if you notice i don't we have to look here really closely at whether there was a nother basis for her to whether the other prerequisites for her to well as a reasonable juror to hesitate i mean is it it seems to me here this this fellow was he created a position for because he had  rule in the decision regardless of whether thompson made the decision or the board you argue man is it was he didn't who is manifesting racial bias and so you have to show he didn't play to rule right now well was and i thought this was there was no dispute about this or let's put it this way that there was nothing to indicate otherwise that he didn't didn't even find out about mccormick promotion until after it occurred well that's what  with respect to the first promotion which your honour's have discussed at length already i think a few points are important here one is that the plaintiff is now conceded that there was no comment about being angry made at any point before the first promotion think had no direct knowledge of any of such comments if that was simply her sort of speculation on that point but comments themselves are not a basis for claiming discrimination in general thompson relied on he did in to give reviews of people what's the nature of your honor i think you have to address that question to my colleagues i'm i'm not quite sure what he means by that but i think that i think that we can look at the evidence showing the misses it in had no role which is the overwhelming evidence as to how this first promotion decision was made right mr mccormick under didley did countless hours of additional work for the board relating to the occupy wall street cases and stop and frisk cases in the housing authority buildings undisputed he did this work it's undisputed he reports to the board about this work it's undisputed that the board thought highly of his work and thought this work very valuable and it is beyond dispute that members of the board requested are recommended that the executive director place mr mccormick in a role that recognizes that additional work can compensate him with a small raise there's there's no inconsistency in the record as as my colleague urges here the executive director mr thompson was clear that it was her role as the head of the executive staff to be in nder this cat's paw theory were in each of the cases the plaintiff sites including some summary judgment for the defendant is affirmed you always have the allegedly discriminatory actors who are writing negative evaluations which are then expressly considered  is really not even a close called the i mean the first to be frank but this is a position that miss l did not apply for there is nothing in the record to suggest that she even expressed interest in applying contrary to statements nothing in that e mail suggesting she said she wanted to apply suggesting any interest in applying and she expressed testified in a deposition that she remembers nothing else but what isn't reflected in that e mail that e mail is on page eighty three seventy of the joins appendix that and finally on the second promotion the district court found in the alternative and we argued that the uncontroverted record evidence shows that mr maccormack was given the job he was the best candidate who actually applied mr soul testifies at length about why mr maccormack was the best candidate for the second promotion and all replied the plaintiff doesn't rebut any of that so there's a second alternative basis for summary judgment on that claim as well now turning to the alleged trial errors in which the plaintiff asked this court to overturn the jury's unanimous verdict rejecting her retaliation claim mr wells retaliation claim  premised on the new executive director drafting and implementing and forcing a new documentary tension policy for bidding the destruction of certain agency  documents this this policy is put in place largely to protect the rights of criminal defendants c c r be investigated allege of police misconduct and there's issues with brady and concerns like that that would arise if documents were destroyed throw into the mix at the jury trial was the testimony of richard emery that ms katz upon a fox was allegedly fired from c c r b for responding too broadly to foil requests brought by the legal aid society it's now clear from the plaintiff's reply that that's what they meant by quote leaking documents you know between us lawyers and judges here i think with the knowledge of law we're well aware that there's no arise from someone trying to say well if if that executive director interprets foyle too broadly and sends too many documents to legal aid on redacted well that means she doesn't care about document security and her implementation of  that he would testify that people told him to stay away from is that while he testified at trial that nobody at the agency told him that and then the plaintiff's counsel attempted to try to refresh mr doss recollection on that question that he answered on ambiguously with mr dawes memory was not deficient is that memory was not sufficient and critically plaintiff's counsel had already told the court multiple times that he would not even mention mr do lawsuit to the jury so to the extent he's trying to now admit the claim that that that lawsuit was admissible he has not preserved that argument at all in fact he's explicitly waived by towing judge cotto your honor i will not mention that lawsuit so he tries to refresh recollection judge total has a side bar really explains how one refreshes the witnesses recollection and plaintiff counsel doesn't try to do so so i don't see how that issue is properly before this court and it cannot be an abuse of discretion for the judge cultural to have she wanted more documents to be disclosed not fewer it had nothing to do with the other she was actually leaking documents to outside of the internet it was it was leaking documents but that's this is destruction limiting information there was no destruction of documents didn't regarding recommendations you know i can't find that evidence in the record so you need to point it out to me ok i see it there's a statement in your brief on page twelve about it but the citations that i've read so far after that sentence don't have that on that there's also testimony that miss editing and was actually you know consulted when it comes to the d d i position by by mr true so the point i'm making is that when it comes to running that