education good morning and may it please the court my name is steven seltzer and i represent the appellant pamela jacobs there were three principal instances in our view of the lower statements by the final decision maker multiple statements that undisputedly evidenced discriminatory discriminatory animists the at that  you your honor on one occasion in approaching that this decision maker miss march march easy the appellant brought up the problems she was having she went to she went to the nursing director and said i'm having this issue i'm being accused of this i'm being told i did that i would ask for your assistance or intervention in the matter and then we have we have discriminatory comments so in our view given the burden at this stage at the prima facie stage which is light given the obligation by the reviewing court to construe the evidence in the light most favorable to the point to the nonmoving party and to  grant all reasonable inferences in favor of that party given the nature of the remarks given that those remarks occur occur there's evidence that they occurred in the context of the issues that were  ultimately alleged by the by the department of education to give rise to the terminations that in it that in it the conclusion that there were stray remarks is his error it certainly cannot be concluded as a matter of law the movement from complying in any way with the admissibility requirement we did not have any any testimony either either in deposition form or in declaration or sworn statement form from the actual decision maker there was no testimony from anyone related to the decision making process and there were there was an order below precluding the usage of that testimony due to not appearance for depositions the witnesses couldn't be located and such i thought there was direct evidence of your client speaking to the mother of one of these individuals and stating that if that this child had been abused by her father and that was sort of a you know either a direct or implied threat to this to this to the mother of this child and that was  not it was not in the record in the manner necessary for the for the non move for the movement to attain summary judgment what's critical here your honor is the why why did the employer take the action that it took there was no testimony no sworn statement from the decision maker from the action taker stating this is why we did what we did this is the end closest they got the closest they got to that your honor was a terminations letter issued by the decision maker who never who never provided testimony and their ability in our view to attain summary judgment rests entirely on their ability to put that document that terminations letter that december two thousand and ten terminations letter in admissible form before the court they made the move and made for whatever reason no effort to do that there is these were letters right these were documents this is a letter but it's offered for the truth and they haven't and they had a major hearsay problem they had to get around it they did not try to get it to two to go under eight  six under the business records exception they needed a statement an affidavit a declaration from a custodian of records indicating that this is a document prepared in the ordinary course of business and this is how it's which the movement's obligation your honor to when asking for summary judgment to submit to submit that evidence and proper admissible form and it's not a requirement that should that should be excused doesn't  fifty six times speak in terms of whether it's capable of being presented in a unmissable form rather than is presented as before as i review the cases interpret it will fifty six here on our side in the brief  the evidence has to be not hearsay and that has to be that has to be debt that has to that has to be demonstrated and the business of business records except right i mean it it you know your said that as much here you said if they had t movement in the summary judgment context we can't make that type of a leap for the movement that is to be the inference has to be granted to the non movement that for whatever reason they could not do that even so if i can move on very briefly just to the pretext stage and i'll keep that very brief even if we get passed even if the movement gets past the legitimate reasons admissibility issue the global error that we c reasons the validity of the reasons combined with discriminatory comments in our view particularly under the schreiber ostrowski line of line of case law that we cite in the brief in our view that should have been looked at as a collective as a whole and it's for the jury to decide the weight thank you very much your honors before you sit down with the presiding yes you're on a quick question was the set of questions what was the objection that you are articulating quite forcefully here made to the district court that is the evidence that your the court would have to rely on is not in and at a simple form it was your honor and if the author of the letter were present or had given a deposition essentially reciting the letter would that have satisfied the concern that you were addressing i would not have made the argument in that case you here a disabled employee is not insulated from the consequences of committing a fireable offense he or she admits making a phone call to the parent there is no question that she made a phone call to the parent on the day of her disciplinary meeting about the corporal punishment allegation the o s i investigation and that investigator is not alleged to have made any reference or even have to have even known  as as the appellant can't deny recommended punishment up to terminations because this is a situation where what they're finding was he's legitimate institutional concerns as the phrase of the court used there involved preventing this kind of conduct that deters children and parents from reporting misconduct and participating in a disciplinary process there is no order of clues in here it cannot be the case that every time a witness can't be located couldn't be located and what the what the order was that the appellant is characterizing this preclusion order but what it said was that if she is located which is which is on it's understood that nobody can locate her that she can't be used to her testimony can't be used in a summary judgment motion unless there's a deposition unless unless the plaintiff gets a chance to depose her but every but there but in this case the admissibility issues and the fact that the nobody from the d not create an issue of fact as to whether there's pretext here some remarks made a while ago when and if mark casey didn't like the fact that this person was hired is a situation where somebody who this person doesn't particularly like independently of her feelings about this person's m f commits a fire  very briefly i appreciate counsel's arguments and statement as to what ms marchese might or might not have done had she been out for blood that was not present presented on the record as a whole we have evidence of these statements there are admissibility problems there are issues with the credence and the validity of the reasons asserted that are tempted to be asserted for