please the court virginia sites on behalf of abbott laboratories puerto rico and kemper as may i reserve two minutes for rebuttal you may appellants are entitled to judgment on plaintiff's claim she was demoted because of her age the record does not contain evidence from which a reasonable jury could find that any demotion was based on or related to age as this court case law clearly requires in response plaintiff st argues the jury could have  d age discrimination because it did not believe abbott's explanation for plaintiffs demotion or thought abbott's witnesses were of a sieve none of this ties the demotion to age this court has been clear that the jury must be able to find not just that the employer's explanation was a sham but that it was a sham intended to cover up the employer's real motive of age discrimination plaintiff argues the jury could have inferred age discrimination because two younger employees in different jobs with different performance histories were not demoted when plaintiff was but for this evidence to be relevant these younger employees must have been similarly situated to plaintiff material respects and there is no such evidence here here it is undisputed that before plaintiff's demotion she asked to be relieved of job duties and responsibilities and was in fact relieved of those duties nothing in the record suggests her proposed compared to ours again different work histories performing different jobs had made similar requests or were otherwise similarly situated to plaintiff as this court including two members of this panel explained and said find evidence age discrimination there must be evidence that ties an adverse action to a plaintiff's age and here there is none appellants are also entitled to judgment on claims claims that abbott retaliated against her by denying her promotions because she complained about alleged age discrimination with respect to the senior product manager position it is undisputed the plaintiff decided not to do the marketing presentation that all finalists for the performance demonstration before this and that because she had been with abbott for so many years they were aware of her capabilities that your honor does not excuse plaintiff from the requirement to perform the position to perform the presentation if abbott as part of its legitimate business judgment decided to impose a presentation requirement for this particular position it's not  an it does not allow an inference of discrimination or retaliation that this presentation requirements proposed the record show that abbott had previously used this presentation requirement for other positions and had used it successfully but in any event  of subjective belief that she should have had to perform it or that she would not have been selected does not allow her to withdraw from the application process and then claim that abbott would have acted unlawfully if she had finished the process if a plaintiff can decline to fulfill the requirements for applying for a promotion and then claim retaliation based on its denial she can exempt herself essentially from competition for sites i had the same concern that judge thompson dad you know could the jury find that this was the st time abbott had used for this type of position and the reason it used took herself out of the process as she says yeah i took myself out of the process because i thought the whole thing was a set up to retaliate against me so can you talk a bit more police right at this senior product manager position and announcement did come with a decision recommended by as the evidence showed recommended by a senior manager at abbott because this position this kind of presentation requirement had been effective for abbott and demonstrating a credentials of employees to do the kind of marketing job that this entailed there is no in prince of the discrimination possible from an ordinary business decision to that this requirement was imposed for anything other than a legitimate business person decision about the best way to screen applicants and candidates for this or this job so in other situations where they've use as their likewise been no prior notice that this would take place the next day your honor i don't believe the record demonstrates that there was no prior notice that the requirement would the presentation would take into that interview with no prior notice that she would be asked to present the following this presentation because you're desperate knowledge it hadn't been done before or position like this your honor except in that that was her testimony i think that she then had a day to prepare a marketing presentation and she arrived the next day to make marketing presentation she decided not question the question is you say it that you can use this methodology and have asked the question is has the procedure gone similarly where the applicants don't know until the day of the st interview way that they would be expected to present the following day there's no evidence either way on that point in the record your honor is there any is there any evidence that this performance added requirement was a bad thing for her and in here is why i ask imagine that she before working for abbott had been a pro basketball player and at the last minute they added on to the interview process that you had to shoot five fall shots to see if you got the job i think we would be and then she refused to do it i think we'd be hard pressed to find that that was discrimination against her and adverse to retaliate on the other hand suppose she was in a wheelchair and they added suddenly at the last minute you've got to do a dunk shot on a ten foot basket i think would be pretty suspicious of that's retaliation so i'm trying to think what is this added requirement more like is it like my st example or is it like my nd example well you daughters of course we feel that it's much more like your st example it's reasonably related to the position that she was about to take on a senior product manager to be able to do a marketing presentation is closely related to the requirements for the job and so we think it was a legitimate business judgment to impose that requirement and there's nothing in her personal situation that would suggest that she would be unable to do a marketing presentation in light of her past experience at abbott and indeed she did not make that argument her argument was she was finish to withdraw from an application process that's legitimately connected to the position your honour's on all or other arguments i will rest on our briefs accepting the question question i think she also indicated that  that normal process that abbott internal applicants were given a hits before a position posted and that wasn't done here as her argument was that it was retaliate for abbott to a posted or looked outside the company for this coalition because that was that was not absent or more practice but in this case the record is undisputed that abbott looked outside the company to normal practice or not proceeding first before i go into the questions that you were asking because i think there's a few more points i need to be made so you have a full picture i want to make two points clear here number one is that there's if you look at the verdict form in this case the rd question is an independent finding of liability on the puerto rico law one hundred and fifteen that has has not been challenge appeal the only reference that the that  of them do they raise the age discrimination claim they started with with you know to discuss it and they jumped they made a leap of faith and mixed it with the retaliation claims you will be able to see that to retaliate yes your honor st i'm going to speak about the senior product manager position which is the one you were asking regarding the person taishan and that is not the only fact that human resources where they discussed this process there were it was there was evidence at trial presented of the notes taken of that meeting just ten days before the interviews and there was no mention whatsoever of a case study or a presentation there were that there was mention that they were going to meet with the lawyers the other point that the that i would does not mention which i think is a skill point essential retaliation is the fact her discrimination claim in the context of the selection process if that is not something from which a jury can make an inference and the court the district court made a finding saying that it was completely question you know ok so you make the point that you could infer a motive and point the difficulty on having is if someone doesn't apply for a job it seems really hard to say that the employer retaliated against them by not giving them the job well here she applied but at the last moment she refused to complete what seems to be a facially no troll in fact perhaps even if we believe her beneficial to her element of the employment process and she refused to complete it so how do we find that the employer didn't give her the job as an actor potentially ation when she didn't even complete the process of trying to get the job first because the process was it was very there were problems with the process i'm going to league in with it is correct that the fact that  qualified for that position were to be given preference she was in she was she was a finalist mr harry says that in his testimony that she was being considered she was a finalist because she was given the chance to participate so actually she was qualified for the position but she no she found out about the posting linked in from someone else when i what its policy was always to post the and that was not done in this case so that was already you're not answering the question let's say this is a relatively neutral perfectly understandable policy and you want to be a sales manager we'd like to see you do a retaliated against her by not giving her this job and that's what i'm having a problem with lee she doesn't even complete the application process indeed even if she thought the performance thing was wrong don't want to ploys to do it and then if they get turned down and they don't think that was a proper criteria or they think was imposed then they can sue over it but she didn't even take it in so what difference does it make that they might have had some motive on something else you know it makes a little i'm not sure that's the right question well the question is whether you have sufficient evidence to retaliate hower is withdrawing whether it's reasonable or not ace it and she pulls out well because your honor if if we look at it as a matter of fact i think i use that in my closing argument something similar to what george use which was the fact that the only difference albert so if if she was to crying a mountain to get there it would seem that if the three of them had to climb that it was fine but not if she were only had one leg she would certainly be at a disadvantage and certainly she was not i'm sorry i simply don't understand are you saying they either two candidates did not have to make a presentation they neutral because it's three candidates were not in the same position you had you saying are you saying the mountain that the other two did not have to climb is the prior discussion about her discrimination claim you know what i'm trying to send with a mountain is a three have to climb it but if you take into consideration that she only has one leg and the other two are not she's going to be this is bandage taking that into consideration by the district judge i tried you can you have the other claim to you have your eighty eight year age discrimination claim itself and i understand you've made a strong waiver argument that we'll look at the full fifty motions to protect you know assume that we were to consider there wasn't waiver and we look at that claim on the merits do you have any evidence to support the two thousand and thirteen i received a nd adverse employment action which i called the additional demotion and that the witnesses at trial trying to avoid having to admit it but there's a document  you very much thank you attorney gonzales you can mute your audio and video device attorney cites you have a two minute r intrinsic retaliation and a denial of the promotion could be drawn we think company decision makers are allowed and indeed encouraged to seek guidance from counsel and that in fact allowing a jury to infer retaliation from that ordinary business precaution would put employers in an impossible position whenever they receive a claim of discrimination we think the fact that there was a discussion that plaintive had filed a claim is irrelevant to and cannot show retaliation against plaintiff it by the linked in posting which is what drew the external applicants for the position but that linked in posting and that decision to look outside the company to fill that position was made six weeks prior to pla i thought she did it but if the court hasn't checked that the she did not support her she did not make a claim of discrimination with respect to the senior product manager promotion perhaps i'm not understanding your honour's question