good morning the st case that we have this morning is one thousand and one re for one car versus guarantee bank and trust counsel for the public please make your parents and proceed november of two thousand and sixteen there was a stance of late part of a reduction in force by guarantee bank she brought claims under the age discrimination employment act title seven for race and gender discrimination as well as retaliation under both statutes the district court granted summary judgment concluding that she could not show evidence of pretext with regard to the reduction in force and that is what we contend is reversible error i'd like to address the race and gender discrimination claims st and then it separately address the age discrimination case claims nd because it's a little different situation than the race and gender claims the party seemed to agree that the issue for this court to decide is one of pretax with regards to the ration gender claim and we believe on this record show sufficient evidence that asked her terminations the reduction in force was a pretext will reason for her discharge i think there's a couple critical facts related to that one is the excuse me had said to this column harra that he was told he could get rid of whoever he wanted to so i think it's pretty clear on the record viewed in the light most favorable to her that it was mister de petros decision to make and there's evidence in the record that decide whether it was improper or not and whether he was being honest and consistent with what he did and i think edition will evidence that is helpful is that he was upset when a female manager received a performance flows which could mean he didn't like the female manager i mean that whole that whole episode there was no there was nothing explicit in that episode that suggested that was based upon anything other than perhaps favoritism which is not unlawful and mean there was no reference to me gender in that in that communication far as i recall from the record it was just he he said something like it stops at the female manager got the bonus and he wanted to make an adjustment why does that signify wouldn't jury a reasonable jury infer from that necessarily that there was a gender basis to well i think it's a question of whether the jury views mister de petro as having a bias unless it rests on race gender or some other protected class threat i would also point out that with regards to mister de petro that there was evidence that  we're we're we're dealing with this loan program referred to the program well what i would call inappropriate lee as a minority loan program which it is not it is a low income but that to me shows that there is  a view of minorities as a lower income and suggest that there is some animists there and she raised that with mister de petro not only in that meeting but according to her deposition testimony they had that conversation she raised with him three or four times and i ask you about that i mean that's an important point that i want to clarify how many times when did she do that i mean i didn't see anywhere in the record where it was clear how  said three or four times i got that but when did she do that and when did she do that relative to the february th team teleconference were she apparently talking mr to pet her right after that one when are these three or not say when those other conversations were well isn't that a problem for you on the retaliation because i mean that those in some sense that there was some causal link between her suppose it protected activity and  connection and temporal proximity but i'd like to return to the race and gender claims and talk about this issue that she was that her position was eliminated her position was not eliminated other company right now and he stepped into her duties completely she had to train him and what he said went when they were talking and when they were training she asked him so you are taking over my responsibility i said and this is miss carr speaking so you're taking over responsibility and he said yes as far as i know i am so i think a jury could conclude that he was terminated two not her position was not a limb unaided after germination her position survived her terminations for the reminder for for a period of about four months ok a fairer characterization well he absorbed her entire job he absorbed her late and take her title that way you don't have that in the record no i don't have that the record your honor as far as i know he retained his title as senior v p but i don't think the records clear on that and you do you do admit that that he also continued to perform other hoodies than the duties that she performed i believe that he did have other duties but i i can't recall what they were but he did subsume all of her duties and on this record i think the jury could conclude that he took her job now he may have had additional responsibilities but i think a reasonable jury based on this evidence could conclude that he was brought in to replace for and that her position was not eliminated and i think that let's talk about that let's let's just hypothetically speak about that if you have t positions one of homes held by the senior vice president one of them is held by your client and the your client is let go and the senior vice president takes over both jobs doesn't that necessarily indicate that her position was eliminated the positions is eliminated certainly he's not occupying two positions as in your honor i not clear what his position was hugh was a senior vice president of home home bank home state bank there in the middle of a merger and acquisition and he has stepped in east up skin to replace her and then he remains as far as i know it guaranteed bank after april st two thousand and seventeen but then her position is a limb unaided because everything has been automated with the exception of one duty so i think the record is sufficient that he took her job and he may have had another duties beyond that but but her job was still in place well at the time of her terminations you don't discuss t he would support me that seems like pretty broad broad discretion and that's why i'm so puzzled by why you infer that there's something unlawful in fairies about that i thought what the understanding was he had a one million dollars he had a cut his budget and basically they gave him all this question on how he did that what's what is what is unlawful about that then he goes about deciding who's necessary and who's not he decides who's job can be automated whose job can't be automated i on this if ultimately her duties were automated why doesn't that validate that the rif did exactly what it said it was going to do i mean in other words when he came into the job pieces of her job started going away and then they alternately disappeared that's exactly what they said they were going to do well your honor but but that could have been done with mister howe haro in that position and the fact that they had to replace somebody in half or train suggests that it was favoritism of in favor of a white male in order to get rid of her i'm not saying that i'm saying it's a jury question based on this record i'd like to reserve the remaining seconds for a bottle we talked about it a bit already is that there is a difference between a position being eliminated at an all job duties being eliminated so in in this case and in in every case where there's a merger between two companies and resulting reps it's not uncommon in fact it's very common for companies to have to decide we might have two similar positions that different companies it might in the in the context of cuts that need to be made position that was eliminated there's nothing wrong with that there's nothing nefarious about it and certainly nothing that supports a finding have creates x and then the next point i want to make on that is mister meyer the argument again is that because mostly i was there for four months it needs that her position was not a lineage and that they chose milan a white male over her but what it's important to point out here is of course not only just that four with that bank for almost twenty years from the time it was one branch and then as time passed to many branches there is testimony in the records that scott melanne was the equivalent of mike to  apples comparison but you know guaranteed bank and home state bank both believes that scott miller and was the equivalent of the mike to peter out he was more senior than miss kalahari off and it was necessary that he stay for that four month period to help with she was a good employee this is not disputed she got great performance reviews by mike every year she was never issued a single disciplinary or corrective action and the only thing that changed in that nine year period was that guaranteed bank merged with home state and this was a big merger after the merger after the merger happened this became the biggest colorado based bank state what i mean this was huge it was valued at one hundred and forty her during her entire nine years until that revenue and i'd like to jump to you know her concerns raised about the c r a long program and as i believe it was judge holmes that pointed out there is nothing in the record to show even if we take what he says as true which of course we do know right now she she said in a high level contacts that she made a february two thousand and fifteen call  was illegal the st time that those complaints were made were at her deposition and also in the investigation by the bank after the rich meeting after mister howell her it was told that her position w those applications submitted in connection with syria long program didn't even identify the race of the applicants it did change over time i do believe at some point there might have been an identification  is that there i read it yes i believe so i think that sleazy here though is that these complaints about the c r a loan program allegedly being a legal and or a discriminatory did not come up to support a case and raise the question of apt to take those planes to the jury and in the context of the discrimination claim as as judge blackburn pointed out complaints about the c r a loan program being not people in the organization who harbored a racial animus i mean if that was the acts that they were taking were it's others that with it's not it's only one step removed and she wasn't they weren't taking those acts towards her i mean particularly if she communicated that raising concerns about discrimination or a discriminatory m m s directed at some unspecified class of minorities how hard it is so raising a general how hard was discriminated against because that her race and national origin well that's what well that's what you're saying i'm just not there or why they be so but let me ask you this question is there anything in the that statement that it's not right not right on tax is is what one is like wonder is there anything worse she said not right because that that i missed in the record yes the only way that she expanded on sworn testimony was to express her disagreement with the fact that the bank had a seven thousand five hundred dollars hat on home improvement lums and there was very clear testimony from the big think that the reason the caps for put in place was because it was based on the applicant income their credit score in the gym and reason that had nothing to do with error rates their national average and again the rate the national origin was point on the elaboration and in that capping did she say that capping was because they were minorities or something of that sort in other words or any linkage between the capping and the minority status of the council just a just a button this this from what i've what i've been hearing you discuss with john holmes did she tell the petro that people were calling the loans minority loans i know she's saying that now but when she complained to him did she ever go to him and say mike they're calling these minority loans and that's discriminatory and that's wrong now one other thing i would like to go back decided to be nice to her that doesn't mean that he didn't across the board table white males over or females right well i think the reason i'm calling that as important is because in this case we are talking about  our as stand alone unsupported claim that this manipulation reports happen and because there is no evidence of that i do think it is important to point out that the actual evidence in the record does confirm that she herself on a  year could have asked on this no evidence point where was there anything in the documentary evidence related to these bonuses that somebody could point to that there are there is there was a bonus point that mike to peter was following every single year that bon me for one quick question of course counsel as far as the bonuses go and the in the plaintiff receiving a bonus but she complained that she received an insufficient i mean obviously she testified she got a bonus