the civil rights laws of our country are dying in the darkness of the granting of summary judgment motions citizens like frederick like mr cohen should not be deprived of their day in court because for nineteen years for nineteen years he had excellent performance reviews there's no disciplinary actions no written warnings any type in december of two thousand and fifteen he has to go in for a heart surgery we are aware of the fact ok so the facts however i would like to point out are not a accurately recount by the district court in our opinion in particular as we just go to the tail end of it in march on march th two thousand and sixteen there was an acquisition the district court said that three weeks after the acquisition the plates are for the public was terminated it's not true  march th two thousand and sixteen yes the acquisition occurred but the a politician not mr call did not come back to work until march th when he came back to work he had restrictions he had to go to  he had to go to rehab in the morning three days a week for his cardiac rehab he had to leave early during the day to go home three to four hours a day where he would work from home he did this for over two weeks and it was only at that time according to the defendant that the decision to terminate him was mean but he returned march th the decision was made april st correct well the specific date of the decision is is not known clearly it's somewhere between  elimination of a position no decisions have been there as to whether that decision was then or was later but it seems like the testimony of depositions was that the decision wasn't made until around april st that's exactly right your honor and if me point too actually great for a get there let me just let me just background real quickly that the district court did find that the that the mr cohen met his prime official case that a reasonable jury could conclude that his disability that he was disabled that he was terminated and that there a reasonable jury could conclude that there was a causal connection between his disability and his terminations critics and then the district judge balances to pretax and all that concludes as a matter of law that the decision to terminate was need in july of two thousand and fifteen and says the predated the disability so how could it be the causal connection and on that point it's just wrong let own words randy watts noted in a memorandum a report about one year prior to claim extermination that the position may be eliminated maybe maybe eliminate it not that there was going to be a terminations and then it says while this discussion was table the issue eliminating the position of vice president arose again as a result of select medicals acquisition associates so we have according to defendant's own words the decision wasn't made until i have two thousand and fifteen there was a memo that noted that me but then in fact it was table and then the defendant take the position that a rose you can only because of the acquisition which was not until march th of two thousand and sixteen when the acquisition took place was asked who made the decision to terminate mr cohen's employment with select medical answer i did anyone else know was mr collins performance a factor in the decision to terminate his employment no when was the decision made to terminate his employment it was decided in april two thousand and fifteen that's just two thousand and sixteen i'm sorry so he's clarifying april two thousand and sixteen so he was notified on april th three people talk two thousand and sixteen can you pinpoint how long before then the decision was made i would say probably within two weeks prior that the decision to terminate him was two weeks prior dowson month after this terminate the defendant was given an opportunity to explain the decision to the equal employment opportunity commission the charges filed and then they submitted a position statement and in that position statement they said the reason that mr cola was fire was soley because of the acquisition and no point in that position seemed to the e e o c to think ever say oh by the way we made the decision in july of two thousand and fifteen it was before he was ever disabled therefore we cannot be liable because if that was the truth that would have been what the st thing that they would have and fifteen couldn't have been motivated by disability compensation this case should should be thrown out and the district court judge or fortunately just sided with the defense and made factual findings and concluded those inferences and the as to mr watts was perturbed or people finally i think said you know anything you know can happen what specifically did watch do or what was his conduct towards cohen that would show there was was asked that i was on maternity leave for two weeks and i got question certainly but the tone the context the way in which is said that you do you have any of witnesses that do you know to whom watch spoke or anybody who good that was said something basically to suggest that he interest to do good yes he did he did he said i understand that that that could come across or he could have that that and that interpretation and that was the feeling that kohut had when he was saying those things if you also think about that he if if the acquisition was so recently acquisition happens on march th you have a guy that's al gore with a heart condition who has to do cardiac rehab if that's a true reason caught the person up and says don't come back we've made a decision at the acquisition instead they have to come back and he's back for two weeks and he's talking no beaks at that point he wants reduced hours and be able to work from home yes he wants to come in late three days a week he wants to go home early at least three days a week he works from home for three to four days a week he's doing this he's doing this for over two and a half weeks from one thousand nine hundred to the end of march when now out them poor comes forth and says we've made a decision to fire you judge crowder attributed financial causation to know that it made sense from a business standpoint because it's so they'd save so much money by not having to pay him his salary which i think was like two hundred and six thousand dollars something like that but then they hired they hired several people did they not hire out catered his duties to other people that they hired they hired multiple people and they hired one that cost difference might have been did they spend more money by hiring these people or if it's unclear from the record how much but it would be mathematically impossible to spend less i believe because there were so many more people that were brought in and even after on july st there was another person that was hired that within the real estate group there and the financial issue that was never raised ever not in the interim to a response cited a lot in our brief i mean there are i assume you think you're saying march th to april st or thereabouts right if it was april th i said two weeks prior and it's probably towards the end of march right morning i'm george nolan speaking for appellee so what medical the one thing that i ask the court to recognize is that this decision to terminate was a two part thing it was initially planned in july and fifteen with the the what's memos was that a plan it was a plan that that began to be implemented but it was it was a decision to terminate they used the word replace and transition him out those are the words that are actually improvement i just have trouble calling it a slam well it's a plan that was then approved by mallett tester who was watches boss and thousand dollars salary and bonus they spent about the same out little more think two hundred and twenty or something to hire three people and those three people they got enhanced performance all across the board from that so to be famous was a factor determination if you look at the employment reviews previously they said acceptable performance but if you look at randy watson's memos he says for this salary we want excellent performance because he's the vice president not a lower level employee so is that a factor is it not a factor i think you could say fairly that it is a factor not of the term of that of what would be what we want to see asked about why he says to bolster the performance of our groups decrease in compensation saving provide more specific level of service and then he says additional resources so i can provide services to our operation teams and then he says additional services so i could provide a better level surface to our operation team and then he says additional resources to provide better service for operations team i'm trying to figure out exactly what what the reason was it sounds like he's parroting this i don't know whether jury's going to find a problem with that but i don't understand discovered but there are multiple reasons that's why it's so hard to to answer what is the reason well there were several the memos from july th reflect several reasons but behind this the physio therapy acquisition  biggest outpatient therapy company in the country noble care is one part of it not a big part of it ok they acquire companies across the country it took a year to acquire physiotherapy associates and that's behind all this  that was the catalyst that determined when to fire mr cohen they didn't want to fire me immediately because they needed to bring in the new people to see if they could handle the job and if that worked out the way they hoped it would as outlined in the memos  very big negotiation and one thousand or so the acquisition was until march of two thousand and sixteen the signing of the documents but the talks started a year earlier i thought you don't do anything until the documents are signed but he returned to work march yes that's the best to prove that he wasn't singled out he was one of several the watch memos but there weren't many select people if you have so shoes to work but they were acquiring another company and there were eleven other vice presidents that were let go at that at this time in the spring of a two thousand and sixteen there were ten employees in mr cohen's department there were affected by the watch memos plan of says he was singled out because he was sick but ten people were described in these two members five months before anybody knew he was going to be sick but they were his job was given to four people two of whom were hired correct i think three people split up the duties were largely split up among three people yes i mentioned the jury hear this and  hear the witnesses firsthand and decide for themselves what really motivated his his fiery i mean there was evidence that he could have he could have done all the jobs that the other people were doing it was a nineteen year employee he'd ask for accommodations i it's about you know making a conclusion as a matter of law and speak on a pretext here it's because the watts plans five months before he gets sick are clear in saying we're going to replace him you don't say when  and the fact that they acted on it they showed that it was a real decision it was approved by his superior then we have mr cohen's experience when he goes out he wrote a thank you email to the h r people saying me even then only three months yes and that's the kind of difference that judge pryor didn't think was significant i mean he rounded it off in a discussion the conversation about whether brandy watts made any derogatory comments when he came back when he came back there was a meeting where watts explained to the other people now look i assigned mr watson mr cohen's responsibilities to you when he was out for four months we're going to reassign them back to fred cohen now that was the the data determination had not come yet it was before that and so they were going to have him he was trying to diffuse back to work before just days before he didn't give an actual timeframe to that we don't have a date ready but it was within a few weeks certainly maybe three weeks and there's going to have to play some videos and was there for going to do know because he was a real estate guy in a physical therapy company his job was to handle leases and renovations when they would take over companies to to handle these getting these places up and running he was taken out as head of the real estate department because they found a better way to do it and they saved twenty million dollars across the board on all these multiple  that but do we know from his two one hundred and six thousand dollars compared to these other people were hired i mean four people ended up doing these jobs and two were hired just proud or you can conclude that there was it was business your money their savings but do we know that they really saved any money by hiring these people who as i just said there was a twenty million dollars savings across the board and that's documented they didn't save money exactly what they did was they got three employees instead of one and it was instead of spending two hundred and six thousand they spent about two hundred and twenty thousand or so is that a savings of money in one dollar sense no in another sense you're getting three employees for one and the the one who handled most of his job according to what they're all doing his job parts of  his job had leasing construction he had different aspects to his job so that they hired one guy to do the construction because he had more bloop bloop bloop print reading experience he had some architectural training his name was hillenbrand and he took over most of the of the position for sixty thousand dollars and he had better skills at reading blueprints than the plaintiff did well if that had come forth in the depositions that would be interesting but i think that what's keeps parroting this provide specific level of service better than what that means is that they were buying these companies like nobody here like physio that had a one thousand outlets around the country five hundred dollars outlets and they needed to be renovated so there was a lot of pressure on the real estate department to enhance their their skills because that would be just such demand for getting these places up and running once they've been bought and this is why right now if fred wasn't capable of doing this this guy came with this skill set and it just struck me  did the company did not want to disclose remember ten employees of the real estate department some of whom are still there were affected by this they didn't want to show their employees their the inside of their personal decision there were still other people there that this these memos abilities there's a lot of things we can look at and consider whether a jury should hear and none of these things even if you acknowledge that they're in consistencies none of these things change the fact that the watch memos were written five months before and if you read those memos and you see how the company followed up on them implemented them you could see that there was not more there was a plan and it was carried through it was a decision the timing of it exactly when to determine it was not that's where the physio plan comes in he came on before they bought physio in september of fifteen and i think he was from inside you know if it is mccafferty is there also which came from inside in august of fifteen and mccaffrey i think came later july of sixteen i think from physio so the entire department basically was restructure and this all flies in the face of plaintiff's argument that he was singled out st for  discriminatory purpose this was a big there one hundred thousand one hundred between one hundred and thirty people had their jobs changed were terminated he was making those like people correct correct but that's a lot of people to go at once from and they were from different departments they weren't all in museum wasn't as productive because there's medical situation so that argument does not negate the thank the jury can still find discrimination but the plaintiff has the burden of showing that pretext and they haven't come forward any evidence except the circumstantial things that we next couple of months that's an indication that the decision was made you don't go spend more money on people when you're part of your intent is to save money but mccaffrey unless you've hired when mccaffrey was alive sixteen dollars he was the rd one that came  it was a spring of sixteen i forget which month it was all about the same time spring of sixteen is when most of these things of these one hundred and thirty or so people were i mean at this point in your favor but there are other things that that  go to the country first quarter satisfactory performance or not is concerned yes it was a something that they considered it's mentioned in the randy watch that he's an acceptable employee but they want excellence i think the word he used in the memo was they want excellence because he's got a high salary that's a business decision that they're entitled to make and it's also a business decision saying listen you're doing great but we can't afford your salary actually just you have i should point out that the background of this is reflected in the president bradley's deposition is that these were multiple acquisitions that were being made over the last several years and players actually participated in four of  and eleven and in that case the plaintiff was terminated seven days after taking a family leave and the court the rd circuit held that that was sufficient standing alone to defeat summary judgment also instructed this kind