to issue these three performance evaluations without any narrative although it's required by the rules and to attach a document that had her lawyers heading on it which clearly indicated to any manager from which she might apply for a promotion that this there is these outstanding evaluations for the product  in raising an inference of retaliatory motive and what's your best evidence that that was not just slowness other than the time i understand this clear chronology is this significant jury well but this is their evidence that gets you past summary judgment is that's the posture in which we get the case so i'm asking for a judge analyzing the evidence is saying is there any evidence from which a reasonable trier of fact could have found this to  it that way you can attach my attorney's heading right there like that and ms hill doesn't respond to that she also tells you that you need to write narratives and she doesn't do that so it's pointed out to her that this is  regular even putting aside the fact that she's an experienced manager and she should know that she needs to put something in the evaluations just to support the rating the fact that it's pointed out to her arm is alan and then she does nothing about it shows her nefarious motive if you will and there's also all the ass that this hell takes against her following that just a few weeks later ms allen points out to her that she doesn't have enough staff now to do the i p i testing and result completely ignores her now if you knowing someone was the act in hamilton house inverses geitner that the these are meetings that are central to ms allen cuties and that's why it's an adverse action if working in a dirtier field and using a fork using a dirtier forklift is an adverse action for of blue collar meet with pricewaterhouse coopers that many times and she didn't because it was her business development and maybe there was a little talk on occasion right out the project but the pretext evidence for that is in her answers to the o investigators questions where she admits that she met with ms know of the person one has several times and discussed activities they were handling for us and she also says in her investigative answers she says that she miss hill was the alternate culture are which is absolutely ludicrous because throughout this litigation that the defense has been that she didn't interfere with a contract she did that ms hill was just meeting with a contractor over a business meeting over business development and that's what what she stated in her summary judgment decoration in fact in her summary judgment declaration she  she only discussed current work on occasion which was appropriate as the director of o e c d now if she had been the alternate co tar she would have said of course i can meet there for when ms hill meets with the contractors she's violating federal opposition rules she's giving them direction on projects totally undermining his u s allen's ability to do her job as coach carr and to do her job with ip i hate testing and that's that is why it is for a manager to have that going on to have other people her supervisor undermining her authority like that to to have her excluding her for meetings with other components homeland security she exclusion for meetings and doesn't tell her about things and then she has to do rework evaluation she marched her down for not coordinating with the burlington finance center when in actuality in ms ms hill ms allen self appraisal sheets specifies how she did coordinate with the finance center and and that's on page one ninety four of the appendix not herself appraisal which the jury can credit and i know not only can they credit the fact that she did communicate with but that is hill knew about it because it was in her self appraisal so ms hill knows about it but she still says that she didn't coordinate with that now you you could argue that a jury could think the other way obviously that's for a jury analyzes his impact differently from how you are hearing it in the sense that the you know you just focuses on exclusion from the things and the performance appraisal and you are reaching far beyond that and i wonder given about motive in pretax you do i mean this court said in aca that you have to look at all of the evidence of the circumstances all evidence that can raise an inference retaliates one motive and so that's why there's a whole pattern of antagonism that that starts and even though we're not alleging certain things as adverse actions to the to others actions are as you said exclusion from meetings and their review but if you want to understand the motive of kathy hill you have to look at all the actions that she took against ms allen while she was working for her i mean it's it's extraordinary the number of times that she tried to undermine her own subordinates work and you question is is it a separate element of is a separate instance of adverse employment action that she was excluded from meetings or is it just serve more friction in the interaction between them is an adverse employment action is even putting aside the evaluation it made her job harder to be excluded from meeting not everything that makes an employee use job harder is an adverse implementation what's your best i don't think that's true i think that the supreme court said that if you make someone's job more arduous depending on the circumstances which would mean how much more arduous that could deter someone is not whether it's an i person climate action it's whether it's reasonably likely to deter an employee look at how much harder it would make your job as a manager if somebody was excluding you for meetings on issues that you're responsible or she gets rated on the i q test and she gets rated on her communications with pricewaterhouse coopers so let me just put this in context there's a settlement agreement in february mrs hill or ms hill becomes her supervisor in march exact right yes all right and then mrs ms hill leaves when not sure when she leaves of it's why what i'm trying to get at i likely the government's making the point that the meetings for him which she was excluded were for the two thousand and nine performance appraisal period year yes all right so the meetings before october one the exclusion you're saying yes was relevant to the two thousand and eight appraisal period yes what are the new things before record we don't have specific meetings but the allegation is that she was meeting with pricewaterhouse coopers consistently she also directed her to cease communications with d h time homeland security staff including on pricewaterhouse coopers not her since really the pricewaterhouse coopers issues in the district court takes the position a i understand it that there is no evidence that he or your client ever asked to attend the meeting that she had mrs hill calendar and that then mrs hill after these meetings w in her declaration she says she didn't know about it until after the fact and can we i thought judge hillard with as needed to help us with the record him down pre op tobar one words if all the problems happened after october was far as exclusion from meetings and didn't go into the appraisal for two thousand and eight well they're separate adverse action adverse action is the poor evaluation that you interact because while she's excluding her from meetings she's holding her responsible for communication in evaluation later so there's some there's some cause and effect there but really the adverse actions are separate so when mrs you know if her two thousand and eight appraisal refers to your client's failure to communicate your client's a complaint she's had you judge haven't always questioning you i think you discussed some of those i just want to get the sequence here because when i tried to do a time chart on this is that the problems you're alleging are while mrs hill was pre yes but that at least for the period october was through the end of the year the appraisal that she received she's not complaining about  so that's not my question was did mrs hill in appraising her for two thousand and eight row why on events that had happened after october on there is this there is actually an email in the record where she says to her it's inappropriate for you to meet with the pricewaterhouse coopers folks without me on this crane and she says well you were out so i would have invited you otherwise  had physical access to go and look at her calendar but that doesn't mean that every time there's a meeting she's actually looking at the calendar because she didn't know that you know she needed to check her calendar or say she you know she makes an appointment  thank you you're from the government please the court the chronology is actually essential to this case of the two adverse or the two discrete accidents you here are the november two thousand a performance rating and then the subsequent handful of exclusion from meetings paragraph fifty one had left before her two thousand two hundred and so it is your understanding of the record is that mrs hill may have had a different management style than a plaintive had been accustomed to but that the problem really arose from mrs perspective that there was a deadline to be met and it was not  it had to be extended and that she viewed plaintive as the g s fifteen manager as in a position where that was her responsibility to figure out how to get the job done and this is the plaintive response i advised mrs hill that i needed more staff at the job at which was the sale acknowledged was intensive and that mrs allen alerted her to the fact that she needed more staff this is hill never responded and according to the plaintive never made herself available to discuss the need then this is a no comes and says well you know it's within my discretion as to how we allocate resources about the question is there sort of a disconnect there that just assume for the moment that israel does have already  resources but then can you criticize an employee he says she doesn't have the manpower to do the job and that you admit it's an arduous job and criticized for not meeting a deadline th that she was not effectively communicating with them that's not disputed that we're going to finance it or made that complaint the other primary reason was the failure of miss allen to monitor have the staff to do the job and basically this is hill says you know i can't give you any more staff there is any indication that i'm just trying to understand that plaintive but refused to do the job or particular project i don't think i can make there be difficult to make the deadline pertains to a secondary reason on under one of the performance almas right it's the one i'm asking you ok well that's a promise element to where she received it received exceeded ask that patients as opposed to achieve excellence and there were two reasons under that performance goal the first reason was the complaint by the phone to finance center which is unrelated to any issue regarding staffing the second issue related to this test of the effect of miss where it is and maybe it isn't that's what i'm trying to understand about ok if i have a job and i say i don't have the staff to do it and that's affecting me in various ways and one of them is i'm not communicating as much as i should be that's all i'm trying to understand about well i think that's in the record at joint appendix five eighteen in five nineteen are there are that many pages and she doesn't with respect to the burlington finance center complaint she doesn't say i don't have the staff to communicate  the deadline on this test of effectiveness her response is well i told you earlier that when you increase the scope of this project it would be difficult to meet the deadline you see i was right so under ms al highest rating but to still give her an exceeded expectations under that element is in performance all three which is where the documentation issue arises and again in that e mail miss i don't want to  response doesn't say anything about you interfered with me trying to do this what she says is i delegated that to my supported miss crane even though she admits that she was also only responsible in the performance called her to make sure the mismanaged process is not inconsistent with the notion that crane might have done what miss allen was asking her to do so there is no inconsistency and so you're saying that documentation and the failure to get th that testing in collecting the documentation it was miss allen's responsibility to monitor that product process he told mrs hill end of the letter three hundred or five hundred documents ten had been identified correct so that's moni once he let her best person on there in july of two thousand when this came to a head and the deadline was a fast approaching miss hill said to miss allen ok there's a shortage of documentation what do you propose to her response was not to offer a plan to remedy it it was to say again i told it was a bad idea to let the finance centers do this and i don't foresee any way to remedy it so in other words she was prepared she extended the deadline well they extended the deadline for a month and she went and got she wanted but the evidence your honor is that she's extended the deadlines and she didn't she didn't her testimony she didn't take off in the review because ms allen feels meet the deadlines just kind of understand the disconnect here but ultimately your honor the question the legal question for summary judgment is did she i honestly in recently believe that hill was not being responsive and not believe in the reason she did in the contemporaneous e mails stablish that exactly what hill has explained happened allan didn't have a plan to remedy the situation was prepared to let the agency on that issue well two and also page two forty four that is the list of the exclusion for meeting claims that she raised in the ministry of process they date from november two thousand and eight not prior to november the date from november two thousand and eight which is after the performance rating to february two thousand and nine and there's a handful of meetings at issue but that's under burlington northern that's potentially a problem to exclude someone from meeting some problem meaning it can rise to the level of something more than what the court supreme court called petty slights for minor annoyances because meetings can be very important to your performance of the job whatever everyone in washington fights to get into the meeting that's the whole deal and so i think meetings are are critical and it's to someone's job performance at times and so it's here i dish from the burlington northern languages admitted willie leaves a lot of fuzziness but i'm hard pressed to say that i agree that exclusion f is not an adverse action you of course of course have an alternative argument on that analysis for exploring that but on the adverse action side because they do use the example in the supreme court about weekly training one shows that would that would qualify and what they used to distinguish her petty slights from minor annoyances simple lack of good manners on the other hand schedule changes could matter to some employee weekly meetings could matters some employees and also the court makes clear it doesn't have to be related to the terms or conditions of employment which i think it's important that the well something something that isn't the district court's opinion that i'm not sure i agree with completely there i think it's more accurate to say she was not in for a firm of we invited to certain meetings this is in the context of a supervisor so that should just to be clear that's response plaintiffs counsel gave in the briefing here today is that there were shifting explanations about the reasons for the exclusion from those meeting so can you respond to that right so first of all the documentary that the pla pointed to this may two thousand and nine igo declaration is not part of the record it was attached to the reply brief now certainly would have the opportunity to make that part of the record in district court if they believed it showed an inconsistency they did not do that that said it still doesn't show any consistency because what miss allen says in the e o declaration is that she met with price for waterhouse to discuss  current activities and business from hell and what she's explaining is that when you talk about business development we're part and parcel of that is ok what are you currently doing for us and what else can you be dealing there's no evidence evidence which is very vague and unspecific is that she was told on occasion can't remember when can't remember the details by pricewaterhouse that at some meetings not sure if it's the meetings it is this hill gave technical direction so she's proffering what she was told by pricewaterhouse about what pricewaterhouse allegedly was told by ms hill for the truth of the matter asserted and that there's there's no evidence competent evidence that hill even did at these meetings what alan alleges she did therefore the record is undisputed that the purpose of the meetings was business development and his knowledge is again on this page is for eleven for thirteen fourteen i think of the joining and it's that is perfectly appropriate for held as the office director to have business development meetings with contract that the lawyer worked on something called a one twenty three remediation the co tar for the lawyer piece of this was miss hill at pages three sixty five to three sixty seven of the joint appendix again miss sounds deposition she acknowledges that she had no involvement at that time in a one twenty three radiation and had no reason to be talking with the l she was involved in something else called a one twenty three testing which was the testing that was done to see if there were deficiencies which would then be remediated on this second piece of this of this process so for that set of meetings handful of this issue about her being cut off from communications with the h s there was a may two thousand e mail at the joint appendix five twenty six hill isn't saying don't ever speak to the h s she's saying you brought up this particular set of findings to d h as about running for me please don't talk with them about those findings until we have a chance to talk which is absolutely consistent with hill is a new supervisor she never rated or had made limited interaction with it on and she's not in a position to provide a narrative about what miss allen did or did not do during the prior three years which is what the seller agreed it was address and she followed the letter of the seventy three and he's now going to play says you're supposed to fill in some reasons in them and them the supervisor says i don't really know you can always say let's have a conversation about that you know compliance with someone who in fact alan had had run that up through a separate administrative process about whether it was in compliance and the h s found it to be in compliance and that was never  the facts trailer if she wanted to submit these performance reviews for any job applications so that the theory sort of fails from the start that it did miss he'll somehow  retaliatory motive here so not only do all these events that are actually channelers happen months after the settlement agreement this year what would you have is evidence of a supervisor who's very busy constantly in meetings schedule was made available but it's not really available if you don't tell your employer is that they can have access to it so she didn't know about it for a time and then she discovered it by accident so i mean there's there's the retaliatory motive why are you telling some subordinates but not ms allen that she can go and look now they're also arguing that ms hill didn't meet with the contractors for  meeting with the contractors without her arms crane present there's also kind of two regarding performance goal number three that's the one with the i p i testing for she had warned her that she didn't have enough staff to do it but in her response to her performance redirecting those staffing contractors to other aspects so ms allen was a learning her the problem and instead of resolving the problem she blames her when what happens is exactly what ms allen predicted would happen that they they