sales representative and the defendant even admits that mr guyton looked around and saw that there were other employees in similar positions other sales representatives who are not members of a protected class either african american are over forty and were being treated differently poor serious policy violations as serious or more serious then and why he was placed on an action plan for being having delayed reporting for what might be called tardy call logging and expense reporting he was accurate and truthful but not timely that management action plan the railed his efforts to transfer to a better situation from then to the end of his employment over a year later the judgment should be reversed because there are tribal issues material fact on both discrimination area tally ation and i'm going to talk a little bit this afternoon about substantial evidence of pretext and some of the elements that were questioned and by the court so as to pre explanation is unworthy of credence because it is internally inconsistent or otherwise not believable or directly by showing that unlike lawful discrimination more likely motivated the employer so if we look at the internally inconsistent what we see that goes to pretext are a lot of other employees a lot of other outrageous policy violations that were not disciplined were not subject to discipline in the same way that mr di was so how he was treated compared to his sales call league's other sales representative who committed violations of policy that could be seen by the jury is equally or more serious is relevant both to the prime aphasia case element of qualified for transfer and to pretext for the discipline that prevented him from transferring out of that district it is against policy to falsify visits to health care providers offices and to give away samples to doctors you are female and not report those accurately and yet a female employee under age forty did it and regional manager myo tun promoted her more than once but she got it more than once or she was promoted on with a much she was promoted more than why is there anything in the record that she did that more than one time she's told not to i think there isn't anything in the record ok and forgive me but her name is her name is wilson ok wilson and she did this i think she volunteered or certainly admitted that she did it and she was told not to she did ok and then she was promoted more than once yes she was and guyton mr guyton heard this employee wilson and missed the chief falsified call call records and tun only told her not to do it again it's against their anti kickback policy a very important public interest policy anti kickback policy to bribe health facility into using the defendant's and supervisor sutton thank you because that incident this what i'm what i'm going to talk that now was not actually it wasn't i don't believe mentioned in the decision i'm trying to figure out where somebody else similarly situated sawyer somebody else who didn't love calls i don't have anybody who didn't call wilson would be the closest but our position is that if it's a a more egregious policy violation like an kickback policy for those employees not to be disciplined the way mr guyton was ok and wilson you think was more egregious yes and and what wilson did was give away samples yes she gave away samples but she also recorded she in her purse could be akin to a logging problem she actually lied on her logs she wrote them all up the day she gave away some of them she wrote it all up as though she'd given away all of them right now this is the one it's most closely related that's an inaccurate logging problem yes i mean that's more than inaccurate that's misleading that's a false but i just want to know if the one that is most closely sim yes actually thank you yes it is that you're on it and because of because it's a logging issue but there are some that are more ocean it doesn't really it relates to the promotion claim only because it's where we get into pretext and it doesn't relate to the promotion claim directly it's more related to the transfer you play it right because it's about pretext for how he was disciplined and how that interfered with his his transfer prospects so it's against public policy and i kickback laws to bribe the health facility into using only their product but supervisor sutton encouraged the practice for another sales rep named  quid pro quo to give away insulin samples to a health care facility and the people there the nurses scene staff said the facility and exchange would agree to use only the defendant's product o disciplined but he was encouraged by supervisor sutton the management person who was mr guyton direct supervisor is also that sounds less a question of discrimination and more  as we sort of encourage employees to violate it because it's good for business well that's what it sounds to me like what's going on it's other here we're overlooking a violation that they consider to be a gre kickbacks and discipline for that then you'd have an equivalence but it sounds to me like they were not enforcing the rules equivalently not because of the person but because they just didn't like one of the rules they had the woman the books but they just chose not t it that's correct on that but the but but what comes into play here in the interim before he gets his disciplinary write up the action plan for failure to log on time and while all of this is going on and not being disciplined he makes it a complaint about the promotion and says that was unfair you're treating the unfairly or treating me differently than other employees and right after that he gets this and then he had a history of logging calls chronically late so i mean you know that of course so you can you can you would like to respond yes he did have that history but remember that history starts before august two thousand and twelve if it start starts way before that's their point yes yes correct but all along he hadn't been made to believe that that was going to be a disciplinary worthy well but he won that and and he in august two thousand and twelve remember he supervisor mcgregor verbally counsels him about this noncompliance with the logging on this quote the numerous occasions i think according to the testimony right yes virtually counsels him doesn't say you're going to be written up for  doesn't say it's worthy of discipline or determination or ok and then between october and november of two thousand and twelve there's more than one hundred calls logged late and and your your position is no one talked to him about that he's never counseled about this until he's put on the performance improvement plan or then the action plan he's council on of ok it's not necessarily that they say to him you know this is going to be something we're going to discipline you for by they required to tell them they're going to discipline them if they're caught talking i mean i'm sure where you draw the line or if you're making a distinction that i'm missing in the case law can you help me out with this well there isn't a distinction in the case law and there actually isn't there's possibly a distinction in their internal policies about progressive discipline but he wasn't given any warning that we're now going to do this to you and it's suspect that it happened only after he complained about disparate treatment respect to the promotion ok that's argument it happened two weeks later he gets his first action plan and yes it was from a different supervisor who was filling in well supervisor son was on maternity leave but a guyton has introduced in a civil evidence that sutton was still involved in the process was still overseeing things was still in communication with her team and he was part of her team he his statement i think was and then it went away correct ok that's right all right and then but but it looks like by early march he's blogging late again yes and so after that he's continues to seek transfer because  there's obviously something going on here he has begun to feel that it's personal treatment from sutton he's told that by a couple of different other other managers who hear from sutton that she interfered with the chief she shot him out of the promotion opportunity and that that comes from i believe from manager another manager mark  that she well what happens in march when he seeks another transfer she calls him and says something that again reinforces his feeling that he's being discriminated against and treated unfairly she says you're never going to get a transfer from me and you have to get it from regional manager mio tunde and good luck with that and she's upset that he went  around her she didn't know about that he was well that's a fresh start is that what she's upset about it or is she retaliating against him every time he complains about unfair treatment he is you know subject to more discipline so he still doesn't get that he doesn't get that that promotion and he continues to i mean transfer we're now talking about a trance right and he continues to ask for transfer all through the spring of two thousand and thirteen we're into it now ok and he keeps saying again that my family i need it for my family there's a health issue it would help me to be closer to my family to wherever he works and she said this to him they tell him she tells him there are no transfers he sees evidence that that's untrue and he again goes to complain to her very directly that he feels he's being discriminated against and now he's given a written warning mass just one question about the failure to promote we've been talking a lot about failure to transfer my understanding is that the employer's response to the failure to promote claim there their legitimate lot non discriminatory reason allegedly is that during the interview the person responsible for making the decision thought that your client was not didn't evidence and a knowledge of what the job entailed essentially and you know the record better than i do but but what is your argument that it was a pretext well mr wright introduces evidence of all he did to prepare he talked to a lot of people who'd been in that job before so it's it's  hard to believe that he went in there not knowing what the job entailed so that that representation of the way the conversation went i think is a jury question and should be left for the jury so you're argument is that that's implausible it's implausible based on what he what mr guyton talked about how he got ready by talking to other people who had been in the position he knew what the prison was and then we get to the end result and not only is mr guyton who is over forty knocked out of that job there's another woman over forty who is also knocked out of the job and it's given to a very young male hispanic in his twenty's thank you know that i was and it sought to inject entirely new theories as to why he had suffered race or age discrimination they were not played in his complaint or mentioned when he was given the opportunity to explain during his deposition the district court here issued various things about which she was complaining were pretext as the court has has already indicated the plaintiffs there are sensually three things that we understand the point to be complaining about the first is a july two thousand and twelve promotion that he sought for which he was not selected your honor asked what the evidence of pretext was that was presented to the district court we would submit your honor that there was no evidence there was no evidence of protection that whatsoever mr atkins who is the decision maker offered a declaration in his deposition was not taken in the point of obviously knew who he had interviewed with his name came up during his deposition  atkins laid out the reasons and the reasons were twofold first he his expectation was that piece that a qualified candidate would have a good understanding of the reason will support manager job this was different than a sales job this was a job involving sales analytics looking at business data and essentially analyzing and developing strategies around that data and he wanted to see a candidate as he explained it as decoration who understood that those were the competencies and that could offer examples as to how a candidate could fulfill those competencies as the point of stuff position testimony evidence is consistent with atkins declaration the plaintiff asked rudimentary questions about what the job involved and what his responsibilities would be which atkins quickly realized and decided were evidence that this person did not appreciate was not on able to sort of explain how his sales co translated he made importantly actions interviewed the first time around three candidates there is a we think insufficient evidence in the records of suggests that the candidate that the point of identified mosse i think there was an assertion she was over forty the company records which mr actions relied on after the fact to confirm how or how old she was in connection with his declaration so that she was under forty we don't think the point of his offered any competent evidence to show that she was over forty so we have one additional candidate who was not african american and therefore he was not selected we have a second candidate in this first interview around who was under forty not african american who was also not selected it is true that the ultimate candidate who was selected was under the age of forty not african american but mr racoons explained this was a candidate who actually understood the job and was able to bring examples of how in rank or compensation or provide any other benefit the plaintiff plaintiff's response to that fact was undisputed undisputed he did not dispute that these transfers essentially would not convey any benefit to him we understand he disputes that right he disputes because the west hollywood was going to be closer to where he had a family situation so it's not it's not no benefit that's certainly contested doesn't it that that's that's right that actually is right around it and it as i was about to say it's not as if he there wasn't some some conceivable personal benefit that the point of thought that he would achieve from the transfer will be fully appreciate that and to be clear contrary to what i think was just suggested there's no evidence that the plaintiff ever said he wanted to transfer to escape his manager and avoid discrimination that evidence is simply not in the record to the contrary this was a matter of personal convenience and due to family issues and but but again in terms of what we think that's that's not enough from our perspective to constitute an adverse action there has to be has to be something that is actually job related it has to increase as a matter of law is that is there is there thirty on that point that a transfer that would make life easier for personal reasons cases involving some there's some positive impact on the job that is being sort of withheld is that is the most confident employee wilson that's a difficult question for us to answer your honor i  guess that is probably accurate to say and so far it is as as a point as was and it is a lobbying error right it's quite frankly unclear your honor from the record what what it is that the miss wilson did wrong the only evidence of it there was introduced again came after the close of discovery in plaintiff's declaration so all we have is what we consider to be his foundationless assertion and labeling as to something that he witnessed we have no ability to sort of well that's why it's not foundationless it is his observation of him we take it right his assertions is true at this point and his observation is that he overheard this conversation that wilson was asked why she was giving away her free samples to only a handful of customers i'm paraphrasing of course fred wilson admitted she quote just monitor it in that way but she actually dispensed the products in smaller amounts to other customers and she was told not to do that again right again paraphrase but he alleges my understanding of the record is that he alleges he overheard that exchange correct that's right and sorry your honor what i meant foundational is that it not mean to suggest that something the point if he witnessed himself was foundationless i meant it in the sense wilson is about as close as he gets it for which of course she was told virtually reprimanded don't do it which is consistent of course with what happened the point of he was really reprimanded not to run afoul of the writ of the logging regulations that there's no other person in the record who who was late with the locks he's the only one notably of course miss you doesn't allege the miss wilson's race i think it was his suggestion that she was caucasian that is not in his declaration so again it doesn't appear to  evidence of race discrimination even though he does allege she was younger so it is really from our perspective that the discipline and the transfer of the virus he tied together considering his request all right i probably have a right here so the answer is as the first transfer your honor the answer is yes he was an action plan at the time he made that request the action plan is dated november ninth two twelve mr garden's request for the transfer is dated i believe december second two thousand and twelve he was approximately halfway through it what about the transfer request to hollywood west hollywood at the time he well there's during his deposition but again giving him all reasonable inferences even ones that might not be justified here that would have been march when he made the request the request however it is undisputed again in the separate statement facts laid out it to another manager to the district to the region or to ten june dr tune in may but wasn't he told at that point that guy time is either on a performance improvement plan or about to be placed on mine and he wasn't on one at this point i right if we're talking about march the answer is no he was not on one but again the testimony the undisputed testimony of the undisputed evidence is that karr did not take up that request until may and when a car takes up the requests and tries to move it forward by inquiring and letting mr true know that mr guyton had made the request that happens in may and as of may he was on or about to be put on an action plan by the time when i may twenty ninth right you asked why did why did mr carr wait so long was it your question that evidence is not in the record here there's no suggestion the planet doesn't offer a suggestion right the planet does offer a suggestion which i'll turn to in a moment but there's no other evidence in the y now but again turning back to i think the question that you're on that's implicit in what you're asking your honor is was it march well when you look at the point of stock the ration it's for this theory to work he has to be told that he was somehow denied the transfer in march before he was on an action plan not even his own declaration suggests lines that he has to be told in march that's what he argues in his brief your honor that the evidence of pretext here is that he never alleges that he was told in march that he was denied the transfer that he never says somebody told me this i learned this in march he simply said this starts one of the senses of this declaration after the denial transfer in march but he doesn't actually offer any evidence to say that it actually happened but what we think more critically is the court considers whether the point of his offer competent evidence based on personal knowledge to support an opposition and a ru and again it is a matter of pop in evidence citing to a secret conversation without explaining how you learned it such that it was no longer a secret when you learned it we learned it from we think only underscores the fundamental problem the showing here which is that he waited until opposition summary judgment to share his story there any other questions in the court i'd be happy to take in the ways we would submit your honors thank you very much briefly it appears that it is an action plan for failure to being an if you're on an action plan you can't get a transfer it's really more a matter of practice than a matter of policy guyton wasn't on a performance improvement plan in march he says that this occurred in march he says that mr karr was excited about it and immediately took the request to t and two told him told carr that in anticipation that he would be on an action plan and that sounds like he was eager to interfere with the prospect of mr guyton being able to transfer car i tainted by tunes response at that point he may have been a neutral decision maker he didn't want to take someone who was on a performance improvement plan but the march may question is important and  yes or about to be put on one after his calls where he was logging late as of march sixth he was back to logging late game so was it may have been correct here damon was i think it's i think it's an incorrect statement yes and i think it was if they were going to may or something like that so there was nothing in march now maybe there was going to be more verbal counseling about that problem but he was not on that actually like not about to be could have made the transfer then that would have been an and it was an adverse employment action to keep him from it yes personal reasons yes the reasons that he could build up a better business there in that that territory where he had been before and we believe that yes to extricate himself from supervisor sutton in that region they were all that's why it was an adverse employment action to keep him from transfer if there are no further questions also ben thank you thank you