sufficient evidence and then alternatively we're asking this court to grant a motion for a new new trial based on harmful error for failure to fix included a submitted instruction firstly to focus on the two issues with regard the rule fifty b your honor the first is whether the apple a miss della ronde presented legally sufficient evidence that she would not have been transferred but for her gender and next did mr owen provide legally sufficient evidence that her conditions were so miserable and intolerable that a reasonable person would have felt that compelled to resign in a mounting and constructive discharge i'm going over a little bit of the facts because this is a very fact intensive case and then look at each of these different items with regard to gender discrimination and destructive discharge budget classic holmes is a woman known builder of new homes in the houston area and miss do was employed as a sales counselor selling these new homes just north of town near the woodlands when she first started working for the company she was partnered with another sales associate or sales counselor by the name of britt breaks up in a division called legends trace brought in to be miss della anselmo's partner just as mr briggs had done from his dollar on mr della braun now helped out miss dorman to learn different legend products legend had a policy a practice that when they hired a new brought in a new sales counsellor the sales partner at that community would help that personal you can call it training managing lending a helping hand whatever it is even a person with experience in selling homes for a competitor did not know legend products legend pricing and what still better and that's what ms dell around did with mrs norman they said so properties in that subdivision for a couple of years and that ultimately a subdivision nearby twelve miles away by the name of deerbrook it states found itself without any sales counselors whatsoever so much and decided to promote from within basically and take a sales assistant a woman and to promote her up to sell as counselor so that she could learn to sell new homes and they placed her into this subdivision deerbrook estates claiming this was a promotion no your honor with regard to with regard to mr quinn not with regard to the appellant appellant his case this was a transfer it was merely a transfer to help the woman who did receive her to promotion because she had never sold homes at all for legit homes that is why she was put into that community at when she was put into that community then the person that when i'm sorry your honor for playing so i was transferred to a miles away to this new community and she was there to help out a new manager wherever you want to call mr quinn because she was new mr bullard was a new employee he had just been hired a transfer which is the basis of the gender discrimination claim in this case now the originally ms delamont thought her transfer was temporary but after one month she learned that it was a permanent transfer and after four months at that new in understanding or viewing that the evidence in the light most favorable to her it was that she was told that it was a temporary transfer but the record shows a month later she had a conversation with the same manager who told her it was not temporary so she knew after a month that transfer would not be temporary and she still stayed there for another three months and in that other three months she was provided a salary and she was able to attain or commissions and in fact  not the type of commission she was used to when she left the other community but the evidence does show when she started first started that community legends trace the one she didn't want to leave that is sells for very slow and it was done on testimony that she was able to build up the cells in that community by making contacts eccentric so basically she was putting being put back in the same position to which she started well let me ask you a question though what happened with legends trace evidently right across forty five you're on or right now it's it's in harris county right across highway forty five but there are some differences in the neighborhood you know two of us here from houston differences in the neighborhood in the quality of community services and that sort of thing your honor even if their words differ since it doesn't amount to constructive discharge and the houses are less expensive the house some of the houses yes your art matter of fact there are two types of homes with legend it's very high it down six hundred thousand dollars and above and lower homes legend homes there you see two hundred thousand dollars and about below the dollar on was selling those types of homes in the prior subdivision in only the lower end home in the second subdivision but she was originally hired only to sell the lower end homes the number two it still doesn't amount to construct a discharge because again and looking at the evidence in the white most favorable to her the reason she said she had to quit is because she had only sold one home and that she was making one hundred thousand dollars in commissions before it was down to two thousand dollars in salary and then was given a zero salary so that is her construct to discharge claims however that still under the fifth circuit president does not show constructive discharge  legally sufficient evidence to support the gender discrimination claim because the majority of the in from nation that we see with regard to support that claim comes from two different areas and one is through ms delamont subjective belief but secondly she was also not able to provide legally sufficient evidence that there were others males who were similarly situated to her in nearly identical circumstances that were treated more favorably and in fact they court in its order  noted that miss deller on circumstantial evidence that she relied on a listing of female and male placements in play that is she able to get evidence that men were often placed in neighborhoods with higher value homes and that that was the eviden shari'a lied on the issue with that is is that there's no evidence that these individuals were near in nearly identical circumstances in the brief that in the evidence that we see this delamont again looking at the evidence in the light most favorable to her or her best evidence is looking at women that women were transferred more frequently women were treated less favorably in placement a higher in harare communities and women made less money that is not the position at the other subdivision and it is our contention that marvin bullet was not similarly situated in nearly identical circumstances is because he did not have the same type of legend homes experience and he had never sold one ok my question is has to do with apparently he was only trained for two weeks and then he was sent to legends trace that right eep received training from a sales manager for a couple of weeks and then he was placed in the subdivision and it's the pocket pocked as of legend that they put the sales associates in the subdivision then to receive further training hell management a helping assistance that's given at the subdivision missed deller on receive that on hand assistance from a man mr briggs when she first started at the company and she provided that on hands assistant to her new sales part in a lot of their case according to their brief turns on inconsistent sees in the testimony of mr briggs and mr the fellow's name starts with t i can't tell as to tell us or yes your honor and is our contention your honor that those are not inconsistency that in fact that what it is those are the there are not and consistencies instead they are just more levels of generality in more detail of reasons and here's one a good looking at the evidence most light unfair of her to her she says that the testimony was that mr briggs testified as affidavit that someone was needed to supervise and train them when that they needed to train to new zero money and they have a managerial or training capacity as well as their own sales responsibilities i think that's a that's pretty onerous terms of working is no no your honor because it's it's true training role what you call it training maging temporary supervising or getting giving them a helping hand well it's like every time is spent doing that is taken away from developing your market yes your honor and mr briggs a man did that from his fellow ront when she first started employment he was the sales counsellor when she first started and her new subdivision atlanta legend both men and women do that at daron and they sold all the homes and all the homes sold out it was very successful and she had that opportunity to do that and that she did it i think it's important with regard to the alleged shifting reasons to look at a couple of the circuit cases particularly the hampton case and the minutes case because in those cases there's the descriptions of different levels of generalities for instance in the hamilton case three reasons were given for terminations inaccuracy in listing apartments inability to do the job in lack of trust on the job the court found this court found in that case those are not inconsistent they are just more levels of generalities same with the minutes case that more detail rich reasons in both of those cases it's important to show them that they were multiple reasons they're not different in this case managing supervising training helping their synonymous with the same kind to speculate the jury found this case so appealing because they saw that women were being moved and mrs delane ron's testimony of her belief that the reason thought that women were moved around more than men and as judge bennett correctly pointed out that when you have more women than necessarily they may be moved around more inches the fact that someone is shifted in a position that that subjective belief is really not enough there needs to be more and that is why we have a similarly situated because the plaintiff bears abort burn the show more than just people are being moved that they're similarly situated in that to the extent i don't need to but i would like to move on to the facts as they are relevant to arguments in this case so to determine whether or not judgment is a matter of law should have been granted in this case we have to determine the bases for the jury's findings in this matter as the court mentioned the jury was unpersuaded by defends defense in this case for multiple reasons we had both the credibility issues that cast doubt on the reasons the defendant was giving for the transfer and we also had empirical evidence that indicated that females truly were transferred more frequently than males that females were placed in properties that offered lower earning potential than males and that women were actually moved out of positions to make room for males when new males came in or males were ready to be moved up in the system i'll start by talking about whether or not these males were comparatives these people all  are there for us to view and the offer letters are identical with one exception at brett briggs is listed as the supervisor on marvin bullard's because he was promoted from the property that he had worked with dell and that being the only difference there job duties job responsibilities their pay rate which was two percent commission everything was exactly identical all of the evidence indicated that ms dell ronde was moved from that location and replaced with someone else now we know that defendants are given in this case is that because ms deltron was more senior and evidently the argument includes because she was more capable to some degree that she cannot be compared to someone who has replaced her and this leads to an illogical result obviously because anytime we have a situation in which a more senior and very capable employee is ousted to make room for some new hire who is outside of the class that argument would be defeated if this was the logic that we followed as similarly in failure to promote cases if we had for example a female manager who was seeking a position as a v p and we had a male janitor who a both of whom had  sold out at the end of two thousand i'm going back up i'm sorry two thousand and twelve it had sales of thirteen million and then it closed out at the end of two thousand and thirteen i would like to address the if i may the question with regard to the the fate of deerbrook after ms dell around left there's nothing in the record that indicates the rosy future that lay ahead of it is indicated by appellants counsel instead it of the information we have to more women went to that location both quit from that location marvin prices in the true subdivision that are issue yes defendants exhibit number twenty two and i apologize i don't have the record the record on appeal page number but events exhibit twenty two was used extensively and as an exhibit and it does list  home sales prices on there and if you compare those to the graph it was in appellant brief the dictates that sets forth some of the moves that were discussed in mr briggs this testimony you can compare those home prices when comparing the sales people who  of the legends property the the legends trace property had both legends and the princeton homes and the prices went up more than three hundred thousand for the princeton homes and was delane testified that she and  were both selling both properties they would they would switch off commissions and so they split their commissions and the work that if we look at the numbers the volume sales in two thousand and twelve again we had thirteen million thirteen million for legends trace we had three million for deerbrook both were split by two people and so if we look at the income it a two percent commission pretax we're looking at a difference of i believe one hundred twenty thousand hundred thirty thousand to sixty thousand to be split i'm sorry two hundred sixty thousand to sixty thousand to be split between two people math maybe a little although you can't i mean you know figures on tell the whole story you don't just because you sell homes for the company doesn't mean you have a right to sell it the most affluent development correct absolutely there is and everybody at the company knew that right that's correct your honor there was testimony however that the company did not like to move people in less it was induced into moving based on a lot both miss deller and in this dormant testified that at that time that was their understanding that their brief says dorman learned about this to we were told it was temporary and then a subsequent she has discussed it so after the fact she did try to say that i was only going along with it but contemporaneously with the events when confronted with the text that she had sent to dell around it tells a different but that's not my point my point is that her information about whether with temporary came only from the plaintiff yes and also on impeachment through the tax she did say that we would both like to when continued to work there and ultimately left from that property left she quit she was no longer working for legends and i believe also that there was another female named maria mor also left from the property and subsequent to that we know that marvin bullard was placed on that property i believe in january of two thousand and fourteen and then he quit the home sales business from there as well and there i don't believe the record contains any other information regarding dear brooks fate and there was some testimony regarding a man named marie c e o and i do not remember his last name that came out either through questions from appellants counsel or book i believe given the associates who left the property in the subsequent seven months that there is an indicator of lack of success but i cannot speak to that beyond that that inference from the record  affidavit was admitted into evidence and he had initially decision making that was concurrent and could be vetoed by talers for it so it was essentially fifty fifty but briggs was kind of the boots on the ground so  counsel opinions counsel in her argument it kind of mirrors what happens in the briefs and we have all these differences in positions for example we have a sales assistant turning into assistant sales counselor we have a sales counselor becoming senior sales counselor early may and managing sales counselor none of these positions are represented anywhere else in the organization anywhere else in the records but they are all attempts to get around the issue of training now that we can only surmise that the reason that training was such a hot button for defendant is because of the allegation that women were disproportionately assigned to train and the evidence listen to trial definitely showed that that seven of the ten people assigned to train were women of course three were men right briggs is included in that but he's a manager does not sell homes and training is one of his responsibilities i want to go over as quickly as i can some of the inconsistency is with record sites so that you can check them as well i tried to talk to mr briggs about training on the stand and i asked is it part of his dell ron's duties to train her is that right in the answer was it was part of it yes fifteen pages later after we had some back and forth was mr delahunt going to have to train as liquid or not when she moved  deborah states the queen had already been through training several training experiences with previous sales counselor not only them but my training that she'd gone through there was no formal training outlined his dell or on would have to follow or anything of that nature and that's the record fifteen  fifteen zero seven then i refresh the play of the witnesses memory with exhibit six in which he says we need them to try to fifteen zero nine i'm trying to get to the bottom of this training is one of the primary reasons they said that they move delegate over and over again in their pretrial documents we get these witnesses on the stand in the story changes so of their core reason for transferring her is not to be believed that a jury based on the jury instructions may then infer discrimination so i'm trying to get to the bottom of this so was ms deller on move to different states to train who not and this is it fifteen zero nine same page no well let me hold it a second part of the expectation was that i can certainly see why it would have defeated summary judgment but i have a real hard time seeing where you went the extra mile to say to actually prove that whatever happened to m ron was because he was a woman but if you look at the jury charge on something about all you have a season consists of about training but if obvious if you're the senior person in a two person office you're going to be advis was actually primarily for training obviously we believe it was she was moved to make room for marvin bullard who had been hired and was ready for placement that day so training is not our primary argument here the fact that they're saying it was training when a lot of evidence indicates perhaps it was perhaps that wasn't good says to the fact that this is not a legitimate reason for transfer that they had something else that they cannot articulate or are not willing to articulate that gets us to the jury charge where it says that that she may prove discrimination by proving that she was removed from her position and replaced by someone similarly qualified now we know that the jury focused on that this gets into the jury charge issue which  instruction requests and apologize for jumping i want to make sure hell of it is good for an introduction about similarly situated he gave the standard instruction that's contained within the fifth circuit pattern jury charge appellant was asking for a very long paragraph that included case citations and included nearly identical language that was that's not part of any pattern jury charge that's not there's no case law that supports the inclusion in fact eating play included many cases almost all of which include had issues of discipline or or attendance problems other reasons for the termination but who most importantly at first also it was not error the judge used his discretion to  determine that the pattern jury charge applied to these instant circumstances in this case and that the quested instruction would not be instructive this charge when viewed as a whole fully served its purpose and did not mislead the jury but if we look at the jury question that appellant pointed as to that is a question regarding similarly qualified which is a different phrase from similarly situated the instruction states that they can find that she was replaced by someone similarly let me ask you a question if you know we have a lot of law that says that just changes and souray do not provoke constructive discharge and suppose we hold both part of the verdict was not consistent with the law then what will we do well first of all your honor we did not bring to construct a discharge as a separate claim in our readings of the it is merely another way to prove adverse employment action and as a stated in the jury charge the actual adverse employment action was the transfer itself but the jury got two separate questions didn't it they did yes and so they also found for the constructive discharge with regard if the court found the disk constructed to discharge did not exist in this case the jury still found that the transfer was discriminatory act in the transfer was what resulted in the deprivation of income our understand that well i mean that's my question of course what do you do about the damages in a circumstance like a centrally we consider this is two independent adverse actions there  one was played in the alternative of the transfer itself and if you read the jury charge and said did they discriminate in transferring her it does not say did they discriminate in constructively discharging her while it may have implications on damages on damages that is why i'm saying you're on for two reasons i'm the first all of the testimony stated that ms del ron did give it her sincere efforts even brett briggs admitted that she was trying very diligently interpret the state's the evidence that we have indicates that two women after her and in a man were unable to make a living at that location and they left that location as well so the result would have been the same regardless of whether she quit or she stayed and continued to make no money if it did i hear this correctly that legend is a quote woman own do business not hide the person that i'm aware of is a male pre what is in the record to support the statement that you gave us about that my mistake is that is in the record and that the history of what happened after mr ellery on left your book to states is in the record going from the people that replaced or to the fact that mr bu overall successful after ms doran left you're on telly i don't know i know that that's the circumstance and i don't know that that's necessarily in the record or not i just don't know i know that's a circumstance i know this with testimony on and you on the court you should have made that statement to us without indicating that it wasn't in the record because that's misleading and what about the women and is that is that in the record i believe it is to the introduction of our corporate representative who is the owner of the company who was sitting with  ok that that if that person indicated that it that that the company is majority owned by women or water i know in my argument that i introduced her as the one of the owners of the company as are prepared representative she did not so as far as the transfer goes within the houston area for legends hones a twelve mile transfer was considered closer than another transfer for instance miss delaware but as an absolute matter twelve miles in harris county is not nearby i mean i'm thinking of a map of houston for example if you travel as the crow flies from the north loop to the south loop that would be about twelve miles those are not nearby neighborhoods there's all kinds of differences in between and the same would be true of north north harris county twelve miles is a long way it probably takes thirty or forty minutes to go twelve miles you're on with regard to where legend had home communities that was one of the nearest home communities at the nearby with regard to religion home communities are with regard to a couple of the issues that we had in this case number one with regard to construct a discharge the plight of his project failed to present a single case since that shows that constructed just additionally with regard to the simply following up on the on the question that we were asking her about the about the damages are right if if we should decide i'm not saying that we were we won't if we should decide that there's an edge acquit evidence as to constructive discharge but th that there's at least sufficient evidence and more than sufficient evidence on sex discrimination then what what what should be the result in in terms of whether it should be remanded for a new trial in damages or or or what should happen again assuming i know you wouldn't care for that result but assuming that that's the result what should be done your honor act constructed just charges and other means you know or to prove discrimination and i don't believe that the remit is a proper it in that