appellant sitting beside me here to your honor we're here today actually on and i have two issues i have the of the issues on appeal and there is also a pending motion to supplement the record that was sent to the merits panel but we have yet to have had an answer on imagine i'm going to be addressing both of those here in and they're both interrelated and this stems from an employment with related contract and torts actions it comes down to one question whether older female mary burton resigned voluntarily or she was terminated slashed in voluntarily we don't seem that speaking only for myself but your best argument relates to the contractual claim that you made because i don't telegraph them and say that you're causing counsel i don't see anything in the record that's definitive as to miss burton actually resigning but the question i have is you've got a extremely capable person who started one two companies so all the company correct and as often happens there is you know a culture clash if you will in terms of how one comes or it does it versus another and i i don't see the evidence here of age or gender discrimination but your honor the judge ludwick who did issue his opinion well after at the time that we could address significantly younger forty three year old male who she was told to train who had actually assumed her duties they had been removed from her prior to  crux of the matter because obviously you have the seri says you know lots of the sponsibility is split among many people how can there be any reasonable inference of either  age or gender discrimination you know i think there are some issues with regard to the genuine issues with regard for information he's but we can get to that if you focus on this i think that w to assume they're going to do yes if you're going to learn everything that they know and you're going to be doing their job it's excellent advice and he assumes and not only the supervision but all of her o t and everything that she was doing well so is it your position that even if certain of the other duties were spread out that that his that the core duties that you did were sung by him is that what you're saying i want to sit and say that actually he is soon to her duties her supervisory accusation that it was blatant age discrimination assuming all of her duties by a significantly younger male and that argument i believe the judge didn't even touch on the judge what he did very conveniently was just to say that she resigned and i appreciate that the course is that there's a question whether she resigned or not because there absolutely i a question of that here if the judge is gender and age claim determinations were based on the judge's conclusion that she resigned as a matter of fact that are you saying that the that that those determinations on age and gender can stand her garbus of these other issues that we're talking about why i think the age and i believe what the judge did is try to conveniently and easily put everything in a little box just saying well if she voluntarily resigned it doesn't matter whether her job was somebody younger because she voluntarily gave it up abdicated to someone younger and that's not the case she never resigned she never retired although asked to do so here she was in voluntarily separated and that not only was age and gender discrimination but it was a bad facts or move why was there no contact why did not why didn't she say immediately i didn't resign i don't want you talking she didn't know that well she walked away that they could she was discussed it and walked away went back to her job he didn't say that day you have resigned he says why don't you she didn't know as well if you consider yes and she went back she was so disgusted she went there trying to engage in discussion because he was absent supervisor he fast after that was in one month when she let's get your my question ok she's informed that the company believes she has resigned that's right and at that point to make an impact her attorney did and that was the basis of zero the very same day on the sixteenth of june when the letter was sent to her i believe delivered either that day or the after by certified mail it was sent also by a police fax to her attorney  she had called into the office before that letter and was told by people in the office that everyone thought she resigned no she wasn't told that she was wholly one putting through her phone calls and she was on vacation came back to the letter she was not and need to meet the one i believe that they had already made the decision because mr fulton jack fulton testified that he went straight from the conference in new york to wisconsin on june ninth which we believe was a monday and he was already preparing a letter to the customers the letter to the customers conveniently significantly with the exact same date that the letter to mary burton works acting legit leaves that in your resignation so it doesn't even matter anyway and that her counsel immediately stepped in questioned the corporate undue emphasis on the fact that she after the sixteenth went through her attorney which is any client would have expected their legal representative to act on their behalf if the judge had issued a timely opinion actually what usually happens is you merely wish i didn't resign you're going to hear from my attorney i mean i mean if it's as blatant as you say i mean seem it would seem that if it is true that you found out for the first time on the sixteenth that within those without that she's left the company and you say that's not true you would think also before him when you called in and your calls were being forwarded that use you would know that there are warning signals right i'm sorry when you have a call into the company before the sixteenth between the whatever it was the date of the no regular perception and she didn't take it i mean it wasn't enough to put on notice one way or the other her son had been negotiating to leave and he is not at issue right and but what is a stark contrast  placed in writing and that he immediately yes he wanted out voluntarily yes because of that culture clash that you talked about but she did not i mean it was known all along there were conversations and there's an e mail in here that when there was discussions and early met with her son had heard about him leaving they said what about mary and mary's not leaving tell mar brief that i mean the point is the bottom line here is that if she did not resign she gets benefits and certain perks that otherwise she would not get sick wreck that's correct and where is that that there is any indication in the record that she actually you don't have a letter from her and she's asked a couple times at a convention should i resign and they said no no we want you to and  finally the third time if you want to consider it that's not a resignation so where is the evidence of a resignation by mr your honor i would submit that that's really not the right question because on the submit no it did not the only action it took to discontinue her employer all the way up to june sixteenth i think we can all agree did not take any action to terminate her employment the first action that the plaintiff points to is this all that proves is that she she's called in a maybe she's trying to transition something that doesn't transform tell flecks actions into a terminator all it ever did was say to her based on what we said it is absolutely a reasonable belief based on her action what is the action she took that told you she was on the best the absolute best you force the best that i have is that she doesn't return for work and that she tells all these people that she's resigning and scheduled vacation no i mean that's something that we can't you know dispute as even if we were to say that we disputed that that would be an issue of fact where if she says no i did i think that's an issue of it so she does it so she goes on vacation we have to assume the facts and the light most favorable to the ground and so she goes on vacation so not returning to work is falls away that's not a meaningful fact and you think she tells everybody did she tell anyone in the chain of authority about her do you have any evidence that she told anyone who who she would have to report to that she was resigning she does not tell her direct supervisor but she tells people who tell the direct supervisor so statement of resignation to her but the issue is whether hell if i so the judge me in a way that tell folks didn't take any action to terminate the only action he took was to tell her we think you've resigned and we're letter which didn't tell her we're terminating your employment which told her we believe you've resigned and we're accepting that which i mean pain based on the record was certainly a reasonable interpretation of that if word got up to her supervisor that she was telling others third parties that you resign when you think that this person would either call or write and say we understand that you say you have resigned is that true that wasn't done here was it wasn't done in the record evidence was that they had a little difficulty in getting a hold of her is the logical thing to do i think the logical thing was the for her to say what are you talking about i didn't resign it's fine if you don't want me back here but i'm not resigning you have the right you want to terminate my employment or may i that one day you sent the letter you also sent a letter to all the cars first saying she's out of the company and you know now i'm going to contact with her right same day that she's left the company to pursue other opportunities for the magic words which means it was an amicable but certainly not anything that i think is at all capable of this isn't this a family a question of fact that we should be sending back a man i anything it's not just because it is a situation where the only action that tell a flex took was to send a letter saying we accept your resignation  judgment briefing that contradicted her got position testimony because her deposition testimony was i never went back to work at all i didn't email anybody i didn't call anybody all i did was call my letter affidavit and supplements that i think i did not resign and so i mean if she had said it in the affidavit you know i just might have thought i mean she was going to say that but judge again the fact that we may have been mistaken about her resign doesn't convert what the action was which was simply telling her that we accept your resignation but but to accept you need an offer and she had offered at one point the answer is no she offered a second time possibly the answer was no then the third time she's relieved as well maybe you want to consider that's not offer an acceptance that's i mean that's just classic contract but then all of her actions and her words didn't take any active terminate without cause he was i mean the reason is they send a letter accepting her resignation and then making it impossible for her to come back by by or maybe by telling everyone that she would be working with that there's  i'm not so pleasant change of circumstance we may have made it impossible it may have been that that was the practical implication but until she says i protest this that that's not what happened here and they say we're barring the door we're not letting you back in but that's on monday i mean if the if the letter goes out the sixteenth she gets it either the sixteenth or seventeenth and the letter to customers goes out at the same time when when are we supposed to get them but let's say she did protest well let's say she did protest and she said on the seventeenth or eighteenth you know i didn't resign that letter of his gun and hit the desk of all the customers so she's  going anyway well i think it's a digital age to it should be resolved by jury though i think that it's just it's an issue it's a money issue is because if they don't want her there then they have the right then they've effectively taken action to terminate without cause it's simply a notice and benefits issue and whether their actions can be interpreted one way or the other the fact that she may not be able to come back really isn't the contract with the names have the right to predicate did they have to give her certain benefits and they didn't do that right but in order for her to be entitled to that she's got to stablish that they took this action to terminate without cause and we maintain judge that they did take that action but the only action that they took was to based on their reasonable interpretation of events conclude that she had a re and without her making any protests without her lawyer making any protest you know if you want to lead in these e mails that he wrote all he says is it might be helpful to know something about this i have an initial concern but nobody says wait a minute i didn't resign i'm ready i'm willing and able to come back here if you don't want to let me come back here then you're going to have to terminate she did not do anything to protest or to  than sending her a letter accepting her resignation it sends that letter because it reasonably believes that she's resigning both the june sixteenth letter and the letter to look for just a moment of the knowing that they were going to terminate here and i don't believe there's any evidence of that that there was this false promise of continued employment and clearly this was one of these transactions were buying a family business were a big public company the deal is that we're going to guarantee you a minimum of two years of employment and this is what we're going to do for your in these the benefits in the salary for two years and everybody was clear and year time frame and basically indefinite appointment but i think that your point to characterize is the good faith and fair dealing claim is broader than that and including the that there was no intention ever complete the two year period and that there was not good faith and fair dealing in connection with the issue of the terminations versus resignation of john i don't see that as anything it's just ludwig van i believe a bit different than the the contract you know and i think based on the events given her conduct of walking away telling these people that she resigned and simply sending a letter we accept you resignation how that can be interpreted as any type of bad faith type of action the appendix at four thirty three is a change of status for once again it's on june seventeenth and it says drop from payroll mary burton department administration there is absolutely a designated space for retired it's not completed there's a space for resign that would be that would be part of the part to pursue other opportunities which is their words not hers the exact same words that were mirrored on the letter that was sent the same day to all the customers