where the time was the v p of h r for amazon over the entire marketplace organization where plaintiff work and complained that his boss's boss people believe peter farey c and made comments about his ethnicity and his religion and how he treated assisting because it seems clear to me that determination was on the table because defendant settled on the pill that resulted in before that february twenty four e mail to sherr had but then obviously before the march this conversation with her is that a correct it yes or no your honor terminations or a minute ago it had been discussed that was specifically becomes my question perhaps not clear or not is that terminations was on the table and they instead instituted a pill which could also result in terminations and w those all on the cable before the february twenty four e mail go to some real they were a pip was certainly on the table a termination was specifically rejected so under the montel specifically says we need to give me a chance to per improve his performance and a performance improvement plan does not necessarily need to terminations it is meant to improve performance so we have clear documentary evidence common between mr haydar and the e p case is that e b also engaging in protected activity under title seven so in this goes to the district court found a timeline we think that construed the facts in favor of  the district court found that because there was a six month gap between that march th protect the activity and his ultimate determination in september that no reasonable jury could find retaliation here and we just respectively just respectfully disagree with the district court on that what about what about the time that elapses from the protected activity to determination well we believe that that april e mail the april th e mail evidence is an intent to retaliate and if you read that e mail closely it mentions it won't be quick and it mentions that we need to follow but not process oh so you're saying that temporal proximity then an unrelated policy violation or rule violation which leads to terminations and just the mere fact of time gives you can create an inference of retaliation here we have as your honor pointed out about seven to eight we between march and april temporal park some day between the determination decision but that email itself also references the allegations that e mail itself provides clear evidence it mention series of allegations against leadership it mentions that we need to follow up on the process it mentions that it won't be quick and it mentions that we need to handle it like the b who was terminated two weeks before and had complained of sexual harassment another title seven protected activity so you've got evidence in the record and for that that this was an eight week at most between a decision to terminate again before the pip had even been administer and the protected activity and you've got a direct reference to these allegations that provides additional evidence above and beyond the standard standard temporal proximity alone when you say in a direct reference to these allegations would you you're not saying to the to any allegations about ethnic or religious discrimination or you're saying the allegations that that he was being treated unfairly generally by the company well  the e mail says given the series of allegations against the leadership team that's what mr pirie referenced he may we believe that that shows a clear reference to the allegations that he made to show in syria in march phone call so those early it ties it directly to the allegations these allegations were but it's not even clear isn't it that he and i understand the summary judgment so we have to take the evidence on the way most favorable to the man moving already but it's not exactly clear that he's complaining about you know in didius discrimination has an i mean it's i'm being he's obviously compliant throughout his entire career at the company that he's being treated unfairly but it's unclear to me that he's saying it's because of his religion as i'm that march th phone call i think it's extremely clear both parties that thought of that phone call typed up  serials notes mention a trot some talk of bias and she even in her deposition said i thought he was alleging religious or ethnic bias and i asked him what that was and he didn't he said something else so that's a clear fact is because you're one hundred pointed out in our view that's a clear shelley serious says one thing he says another the jury should have been able to make that call and the district court by relying on this six on unless there's any questions on the timing for the question of the timeline or temporal proximity and we do have additional evidence i think of retaliation in the form of compared or evidence at amazon and this is important to understand because performance both before and after protected activity people perceive their employees receive three hundred and sixty feedback from their peers their subordinates their bosses everybody that then gets put into it in a performance review by the supervisor that review has both areas to improve and strengths so everybody's going to receive some bad feedback some good feedback when amazon talks about plaintiff you know having these problems interrupting  our theory of the case both in the discrimination trial and in retaliation is that those who are actually rewarded amazon that amazon is a place for hard charging people who break a few eggs to make  that was rewarded and we had compared or after compared of individuals who had the same types of areas for growth that amazon made such a big deal out of it with plaintiffs and were not terminated you put forth i believe it was nine deal with people who have not engaged in protected activity and one area i think the district court got there are nuances right was a page thirty nine of the union with a district court acknowledges that her performance was actually  wait for the clock to flip a good afternoon which plaintiff appeals and this employment case plaintiff had a full and fair opportunity to conduct discovery he took the depositions of fourteen fact witnesses and make his case and summary judgment including through supplemental briefing the trial court in an extensive an discrimination claims the jury found them lacking in each instance a discovery or evidentiary issue arose the trial court painstakingly studied the issue and issued fair rulings within its discretion and in addition plaintiff's claims of evidentiary errors  to terminate his employment was supposedly made on april th two thousand and fifteen and that's contrary to the theory plaintiff argued on summary judgment before the jury and before this court in addition plaintiff claims that in its summary judgment opinion the trial court found pretext on his national origin  religious discrimination claims but not as a retaliation claim however in its fifty one dollars page opinion a pretext discussion doesn't appear until page fifty in the context of plaintiff's retaliation claim that's because the court here decided the national origin of religious discrimination claims under mixed motive standard which did not require the court to walk through the mcdonnell douglas burton shifting analysis and determine pretext presumably plaintiff opted to argue mixed motive because its direct replacement was also syrian american and also muslim plaintiffs also seemingly claims the trial court denied him the ability to take jeff bezos as deposition of course defendants would have opposed it plaintiff never pursued that issue to a decision before the trial court on or off the table at the time that hadar syria in march was was terminations on the table was it still on the table what's the evidence there the evidence was that when garrett god communicated to plaintiff what his rating was going to be that it was going to be the nd time he was rated least effective at amazon garrick cause intent was to put him on a performance improvement plan and that is standard at amazon when you have year over year lease defective ratings the lowest rating at amazon you'll be put on a performance improvement plan there was a discussion about a termination option at that point at that point in time but mr hadar had not been on a formal performance improvement plan prior so there you sources so the idea so this managed out nice managed out notes or whatever you can manage somebody out without having them on a performance plan not right i don't necessarily agree with with that con with that concept but in this in this case the determination at that point in time was from human resources in his own management that he was going to be placed on a performance improvement plan prior to his phone call with shelly serial on march th two thousand and fifteen and on a retaliation claim we're looking for but for causation this court held just last fall that to establish a caus connection between the protected conduct and the adverse employment action the plaintiff must present sufficient evidence to raise the inference that is protected activity was the likely reason for the adverse action so in that dispositive issue that the test is whether reasonable jury could find but for his march th two thousand and fifteen supposedly oral complaint to h r v p shelly stereo that is supervisor garrett god would not have terminated his employment he didn't make that showing the trial court and he can't do so evidence protected activity in the rd is the absence of knowledge of the decision makers of the supposed protected activity on the timing point this was plaintiff's trajectory as of his interim review in may two thousand and thirteen given  ami he was given pretty harsh criticism and advised that he needed to conform his behaviors to amazon's expectations concerning leadership principles in two thousand and four he didn't think that the to use a euphemism the wheels came off over an employee transfer situation in the fall that demonstrated joe moseby that everything he had been trying to coach mr haider on had not been successful and he reverted back to was two thousand and fourteen and it's important understand how amazon's performance evaluation system worked it's presented at one meeting and then the leader takes that to the next meeting in two thousand and fourteen for that rating i believe his initial rating was barely going to be valued performer i think is the nd to the bottom and when that was presented mr haider also gets to participate in an oil are meeting about his direct reports and in his meeting his peers commented that he reverted back to the same behavior try to overpower the discussions and then when we get to two thousand and fourteen to th rating does does turn out to be least effective i don't believe that that's necessarily relevant to mr haydar as retaliation claim but he was arguing throughout that that was evidence that somehow mr f comment the keep your head down your mouth shut do your job comment in the email following mr head are being invited to attend an offsite event mr fair see testified that that was intended to be helpful criticism for m haydar well what about his religious discriminatory con coming regular comments you know about treating it was better in his poor wife is there all along which had some indication that it related to mr hagar's religion your honor i said i would say that those were strongly disputed that mr haydar that the that the district judge  denied summary judgment on the national origin and religious discrimination claims on the mixed motives based on the mixed motives theory and that point of god a jury on that issue when the jury rejected it so but the performance improvement plan was a natural consequence of the consecutive least effective ratings and as we've stated there was a six month greater than six month interval between point if suppose a complaint to shelley syria and his place and his eventual terminations from employment i need to talk about plaintiff's supposed evidence of protected activity reliably plaintiff escalated every time he received a rating that he didn't like the opposition clause of title seven requires more it requires an overt stand against suspected illegal discriminatory action this point if never did that in writing not even when a lawyer drafted on as a letter on his behalf in august of two thousand and fifteen bezos it really comes down to one suppose that equivocal oral complaint to shelley sariel in that march th two thousand and fifteen phone call and if he did reference national origin or religious discrimination in that call that's not how stereo interpret ingore arguing that he has engaged in protective activity yet his testimony can create a disputed material fact on that point but it goes to the knowledge of the decision maker and here shelly scenario in her notes leadership team need to be coached on accepting severely flawed and biased performance data and prioritizing their relationship building amongst each other at the expense of anyone who is not part of their inner circle which is why i mention their bias against me and treating me poorly since no one from their inner circle was standing up for me when being treated unfairly scenario for her part didn't i didn't recognize that point if was complaining about unlawful discrimination so person who was charged with undertaking that interview the point of twice and it didn't point of did not make a claim that it was supposed to be based on his supposedly based on his national origin or religion so you're right your honor he investigator has found and i think if the question was have you ever found discrimination or or i'm trying to remember what her answer what her answer was if it was have you ever found a violation of amazon policy which prohibits discrimination on the title seven protected classes yes absolutely i believe that she would say or that she did say that she has just briefly to address the september e mail that plaintiffs sent to mr  new timing argument that somehow this april th two thousand and fifteen e mail stablish is or shortens the proximity between point of being placed on the performance improvement plan and his termination it idea of god versus c so you're saying god was the sole decision maker on the firing right yes god made the decision in consultation with interpol are very see it's not involved with the actual firing it's no that's accurate that's accurate so you're right get a fair see from our perspective not part of this but you said something to go i don't like this guy we need to get him out of here or manage him out or whatever it is i mean i assume they would listen to him right yes but it's not anywhere in the record your honor and when we talk about this e mail the end of it kind of makes makes much of that we'll get to a good outcome as quickly as possible they asked the drafter that e mail might be eerie what a good outcome was that his deposition it might be eerie testify that a good outcome could be plaintiff improving and sustaining improved in performance and remaining employed at amazon so i think it's out is exactly the parallel that he was trying to use i disagree with that i believe that employee also more more than plaintiff alluded to was a challenging employee as well and it was not in reference to any as was consistent negative and never resulted in any form of discipline so how can i suppose it how can suppose a differential treatment be probative of retaliation where plaintiff posits that the differential treatment was always prevalent both before and after the supposed protected activity and the short answer is that it can't be i know i'm out of my out of time so they say so you're not sure i'd appreciate the court's time for the reasons argued those stated in our brief and those stated in the record th in which they're discussing that good outcome which we believe a reasonable jury can certainly read but the good outcome there is terminations like it be who had been terminated two months before or two weeks  and in regards to counsel's pretext argument this is actually an area in which the district court got it right on the discrimination claim which she let go to trial she let the jury sort out and got it wrong on the retaliation claim on page forty of her opinion the trial court actually states that that e b e mail says that a reasonable jury could find that the pip was a quote and she uses the term mission impossible and that's the entire thrust of our argument in relation to that april e mail is that it wasn't a bona fide performance improvement intended to improve somebody's performance and keep them employed at amazon that  clearly means that it can be interpreted to be we want to get rid of this guy we've got it we've got to be buttoned up on it and it's not going to be quick and that the pip was actually part of that process and the district court also discusses some moving aware or the record doesn't show that they were aware of the protected activity and they were the decision makers well they were aware of the investigation each of those individuals were investigated or interview investigation and we respectfully disagree with counsel's assertion that mr ferris he was not all mr farris you regularly followed up uncleanness employment including in that april email even though his deposition mr pearson claimed that he was not between god therefore and the religious or ethnic allegation is being mean yes he's in what is he in it when he's interviewed during the during the investigation does this he asked boast for for taking it seriously and doing a good we will take place under advisement and an opinion will be issued and in course