role that we're really following here it's a federal rule of civil procedure fifty six which holds that when a moving party establishment there are no genuine issues of material fact that numerous highly disputed issues of material fact i think it's important for the quarter to consider who michael buell was before his career tumbled he was a high performing employee at abbott from the time he commenced and quite met in two thousand and nine until he complained about discrimination in two thousand and sixteen and blew the whistle in june of two given a promotion in two thousand and fourteen he was given a rating of back to abbott and december two thousand and twelve and he was awarded performance based restricted stock units in march of two thousand and sixteen only two months before he filed for m management like him so much that he was the one that they chose to make presentations to customers about the human talent analyzer that he was working on in may and june of two thousand and sixteen retaliation if he complains about discrimination you'll also have the protection of the california labor code which prohibit employer from recent how badly against an employee or refusing to thousand foot level here but i have the time that mr buell sends his st protected email in early may the relationship between him and mr z had already deteriorated significantly well i asked the question did she have serious maybe i should have made it clear but it's clear that she has is an issue is immediate supervisor was having serious i guess at least was expressing serious issues with his work before this tribunal engaged in protecting condit is that right again i would say that he did that when they were in private but whenever mr buell presenting his algorithm hell and he can't work with them anymore it's irreparably broken and i mean we've all have bosses that made our life hell and and we didn't like working for that's not illegal with illegals doing it for race racial animus what do you think is the one or two pieces of evidence that are most powerful in showing that when she was treating fuel badly it wasn't just a boss who treated him badly like lots of bosses  end of june says you just don't feel comfortable doing this anymore and he just contacted kind of the needs you know people and before this of course he's been warned that he needs to stop going outside his chain of command outside  department but that was unprofessional now in my notes and i took these notes myself i could have got it wrong i have him in his june th email copying seventeen people on that many of whom were outside his department in other words doing exactly what his superiors at abbott had told him not to do airing grievances widely and outside of his partner is that wrong your honor it's my understanding that he was basically told that he should and appropriate e mail and with mr bolton who read that this e mail was not inappropriate what he was trying to do with that tell people i don't think i should be doing i think the other fellow algorithm writers should be doing it i don't think he used and lamin tory language and they said the next day well we're going to write you up for termination and then they didn't terminate yes i would just like they've been dishonest recently that we were in great detail showing that the performance review was not accurate at all and i also think it's very important for the work to look and at a time when mr sheen was managing the immunity project only on an interim basis that's when plaintiff became unhappy with the direction that the white blood cell was taking now planet algorithm the neural network based approach was innovative but in practice it had difficulty detecting disease cells and he doesn't dispute so mr xi who was brought in to bring this project back on track and had to meet an ambitious december th in law made a decision to pursue a hybrid approach and to have his princeton team develop what they called special case algorithms based on legacy technology now plaintiff was clearly i happy about this hybrid approach as we can see emails going back to late two thousand and fifteen and early tw sixteen but the fact that mr she landed on this hybrid approach before he became the permanent manager before plaintiff and made any h r at these complaints completely undercuts claims of central theory which is that developing this alternate our algorithm was part of some racist group seriously to bring in chinese developers from princeton or that it was done in retaliation for inflator complaint and but the more plaintive became convince whom i have no respect and his performance and subsequent to that and even more was consistent with somebody who didn't respect his supervisor he became increasingly disengaged and passive aggressive he missed meetings he resisted coaching and and all of this we don't have to take just mr she's word for we have contemporaneous emails we have before mismanagement documents that were done with the input of h r we have an h r investigation as to whether those performance critiques were raise with respect to race discrimination in the my guys comment that as miller you were pointing out you're correct it doesn't carry any racial connotations and i hasn't shown specifically that it was intended as such and if this is characterization of his declaration he says mr she said it constantly but it doesn't provide any specific examples of it and in fact if you look at mr she's deposition testimony which preceded the separation and if you look at his response to mr he says he always refers to his team as mike and as you pointed out his team was not solely consisting of folks with chinese sounding names and it was a diverse team and with respect to  picking the algorithm what plane it is essentially asking the court to do is to sit as a panel of an algorithm engineer experts and to decide whether mr sheen made the right decision and made the right call but that's not the standard what he has to show is on board with the direction of the project once it was determined that his out rhythm would not be used and with respect to the timing of when that decision was made his counsel said that it was definitively made in may and that's simply not correct earlier that indicate that this shift is happening there early indications that they're moving away from plaintiff's algorithm that is correct because of these concerns that mr she had noted off to the senate clarity when i go back next month in march so these were dynamic decisions that were ongoing there was not a definitive date on which it was determined before august th and that mr buell's algorithm is out and you can see in the e mails back and forth continuously between mr xi and mr buell about tests that he's writing and analysis that he's performing that are not up to par and mr she is giving feedback that mr buell is continuing to risk i would like to also address the point that counsel made with respect to the timing and of the june th complaint followed by the notation about a review for termination the fact remains to get his side of the story and invited him to provide any further information he might have about any concerns he has with respect to mr sheen and they referred his complaint to the ethics office which is what they were supposed to do the ethics office investigated that complaint and the fact of the matter is the marketing presentations were not a big deal once mr buell complained about them mr sheen was that and we had no idea the material was making these presentations said our actions be doing this it should be to medical affairs people and that's what happened the following month mr hoffman out of medical fair started making this presentations so the idea that mr burrage as in this bolton would be so exercise because of this marketing complaint is just not a rational inference what is a reasonable inference is what judge shields pointed out which is this was now the nd time that mr buell had made it a mat to be done a mass e mail complaint putting his supervisor on blast for his supervisory decisions calling him an operating for political reasons that was the may th e mail and in this june th e mail telling a group of seventeen people some of whom are in euro many out of the outside of his department and his reporting structure telling them that for some unknown reason his supervisor has reinvented the wheel and this is he had specifically been counseled on those flights and that was the reason why they were upset and that is clear fairly uncon i'll just make sure i'm the one with respect to the investigations i know council street teaching me the scope of the investigations but that is not the standard again investigations don't have to be perfect under th  detailed reports and so just nit picking and cherry picking the conclusions doesn't reach the tribal issue with respect to pick issue the district court was correct to point out that this idea of a performance improvement plan there was no competent evidence in the record to show prior apply the current process which is a performance memo to mr buell and it's really an issue of semantics because whether you call it a pitch or formants memo the performance was managed for months at a time and it did not lead to improvement and that was the reason for the discharge it was going to ask you about that what is the difference between a th and performance memo the performance memo looks like every if i've ever seen it it looks like a pip in all things but names but concern that they were setting up an expectation of some sort of progressive discipline and that was never abbott's policy and so they moved away from that wording and moved to a more holistic what they called a single performance memo which laid out in more performance and we have rebutted that evidence it is for a jury to determine whether i or not they have a legitimate reasons to terminate especially after he had like these are factual court or say we put on a performance review we did everything that we investigated we did everything but investigation doesn't mean talking to someone for twenty or thirty minutes why not in getting data and not