retains any valid billing t v in light of what the supreme court has now told us there clearly is the correct way to approach the determination as to what the caus one of the things that the supreme court noted was that again they talked about the distinction between retaliation discrimination cases and one of the arbus it was raised to the nasser court was that way second the e e o c has a manual and supreme court says  it's certainly true we would normally consider that we're not going to hear because of the fact that to speak to each manual did not address the distinction that the makes you not one of them instead to retaliation and to the discrimination claims because again they went they spent a great deal of time with your honor's well we're talking about the distinction that exist and the fact that they're concerned that retaliation claims are far exceeding discrimination claims so they don't want to open the floodgates to retaliation cases when they feel that the language within the statute itself there's a split the supreme court noted that the congress consciously put in additional language for discrimination claims that it didn't include was it a retaliation  motivating reason we have first the timing issue which as timing is reduce your honor in addition to the timing issue we also have the fact that the employer was aware of all these deficiencies in her performance and in fact in the month me ask you just a factual question didn't they say that they didn't fire her i'm not because we don't have been reason nail but because of her personal issues that she had some both family issues and personally sheens and i remembering in correct timing on that and they said as a result let's give her another opportunity i don't know of a directive connected it to her rapidly again well yeah and again their explanation of the kind of muddied on that issue but we're talking less than a week from the time in which everything seems to be all right too she's being told she's being terminated so that's all they want to be cussing terminating  mind of the individuals and when we talk that they want to that they want the court to accept it as words of this one we really doesn't mean a week it's based upon some conversation that we claim to have had we have no proof of it other than you have to take us forward at it and  when we when we were faced with that type of situation we say to the case in our standard to reveal perry i believe it is p e r y talking about that state of summary judgment is not appropriate when you're when you're focusing in intent and state of mind of the of the decision makers because quite frankly that's when you have to look at circumstantial evidence that's where the one weak issue comes into play is that a coincidence this is a quiz it's also that no further actions were being taken the position of the bank is that your client sales performance relative to some point she got better and she get worse and she was shifted from what being a financial center manager to a personal banker so she would have the administrative responsibilities and then she did better and then started drifting back in there  n that pattern had repeated this stuff over and over again until she tells him she wants f and how it was the guys who got a temp oil proximity and then we also the fact that up to this point in time there was this roller coaster ride going along steadily ups and downs in  no differentiation between within the statute and quite frankly as was pointed out there congress does get a thirty two the department of labor to thermally in frankly how this is all going to proceed and in fact that's what they did here now i don't think we i mean i think we survive under either does certainly give a fairly good idea that the supreme court is going to look at the words of the statute they move because of in prose is the same thing as because in nasser and now we're dealing with the word for with you which if you use the dictionary definitions which the court did use in nasser means for the reason for because so you or you would take the position that even though the deal was given a statutory authority to create the regulations that it did to govern this that's that's not the words of the statute and we're done that's that's i mean that was seven years ago yes i believe that while there have been some revisions in some of the regulations i don't believe that there was a provision in that regulation in in hunter and again if it was  remind me it was nasser the manual it was it was and there is there is a difference there's no question about it that we're now dealing with regulation but i think the supreme court you're dealing not only with a regulation which you're dealing with  regulation with a specific authorization not just the ability to do will one comment that you sometimes have an association with the statute but an actual statutory authorization th regulation shall govern how this statute is applied that is that is correct absolutely and so if you look at why doesn't the discussion of and factor it cannot be a factor in consideration why wouldn't that be an express reference to me because the statute itself uses a word that i believe that the supreme court would say is texturally the same as because of and you don't even need to look at the regulatory language the statute governs so under it's just struggling with that a little bit because i can understand why there was the court might say in this situation where you a manual created then i'm not even going to look at it but in this situation where you have a specific statutory authorization for i named purpose then that becomes part of the statute and must and it must be considered along with it because it's specifically authorized for that purpose do you not see a difference between those two scenarios there is a difference  i don't believe you still have to even get the regulation if the words of the statute are clear but in addition the regulation uses the word for also so there is consistency there and correct in a dish and a great deal of the department of labor's commentary when it was an acting the regulations has talked about how tight of seven retaliation cases are nasser well there is that analysis was this thorough as one might want i think that the supreme court when it hears this decision is going to determine that under the f time retaliation claims are governed by an answer and mixed mode if it's not is not permitted i would also note that in this case mr johnson did not plead mixed motives and not only did she not address it in her complaint she specifically talks about a pretext analysis which is inconsistent with the motive analysis but it wasn't addressed in her motion her response to the motion for summary judgment and even though judge rosen at the district court level raised it in his opinion johnson did not mention it in her address it in her response brief i'm sorry in her brief on appeal here so it's not quite a waiver argument but she's not has not presented her case to this course this quarter of the case below as a mixed mode of analysis what johnson focused on in her responses to the various motions was a variety of arguments saying that the fifth thirds decision was pretextual it seems very clear that in a once you go through the mcdonnell douglas analysis in this circuit timing alone is not sufficient to establish pretext so johnson has cast her net fairly widely in finding arguments in favor of pretexts all of which the district court found unavailing and we urge the court to come to the same conclusion she argued for example that fifth thirds a witness had had clarified his testimony and that rose to the level of a changing reason for terminations which was which clearly from the record is not accurate  she also argues that fifth third did not follow its own policies but that is based only on johnson's personal belief of her policies not of the written policy there was no written policy in fifth on the change of t estimony was a fairly significant distinction to say to begin with a statement that that we want to be able to factor that think that again looking at the actual testimony provides the answer to that the question was when did you you know ever talk about your boss to your boss about that she was on f m l a leave and that witness said that he thought that he had talked to him about it at the time the decision was made clarified his testimony in the same deposition saying no it was when we were talking about the lawsuit and that was confirmed should not be and i think it was in a dow chemical case the apply employer should not be punished for taking into account some of the litigation possibilities that might arise  from you know making a decision as to when it's made so i'm not sure that that testimony carries the weight that mr johnson would have it would have it carry and it certainly is very different from those cases in which the employer actually that's the testimony that in the same day position he said that i thought when i said that it wasn't at the time of the decision to hire it was at the time when it's a law suit was was was fine but was initially filed political to f m l a claims but focus and white versus baxter which was a pretty nassar title seven case was actually focused on the part of title seven that was amended after pricewaterhouse wish to address that because it puts an employer in an impossible situation the argument is johnson wasn't fired soon enough she should have been fired before but how many warnings or counseling efforts should an employee get and isn't that the employer's decision johnson's performance was not steadily across the board always sub par there were there were times in which she improved she would receive a counseling and she would improve for a month or so she raised issues of personal family problems and was given additional opportunities and if an employer i required at the first sign or even the second sign of bad work performance that really takes away from the employer its business judgment its ability to decide what's best for the company  terms of trying to get a return on its investment an employee is an it's an investment you hire you train you counsel so your fourth or fifth third to be penalized here because it gave ms johnson additional chances seems to me to turn everything on its head and if a court order to sag that i mean what's the number of counseling that you get is there a  three counts things and if you don't fire the person right then after three then it can be seen dead as a pretext given to me as though that you know you are living with open given that it was a decision to fire one until she tells you she wants to take a leave i'm sure that's true and she did improve but she didn't approve in a sustained way which was actually what fifth third goal what if all we have is the timing the timing is not enough for  surgery that she was indicating that she might need six or seven months in the future and that employee returned to work without any negative consequences so that undercuts i think that the employer upon hearing that maybe she would be gone some months in the future for a period of two weeks perhaps only would suddenly develop this anti f m l a bias and there really isn't anything there's no comments about how still the towards f m l a she has no other evidence of other people treated badly she admits that other people were terminated that she was involved in those discharge decisions for the for poor sales performance so i think looking at all of that evidence suggests that the decision that fifth third made to terminate her was not pretextual was not the basis or not based we believe that the testimony which we quote on page one of our principal briefs on appeal applies equally with both mixed motive as well so my sole motive analysis specifically the judge skillman and judge french was talking to the defense counsel about ignoring this why are the refusing to acknowledge now after of after a break at this conversation took place before or terminations why are they being defensive about that and if it's no big deal there's nothing it's much ado about nothing then why after the