joseph called mr joseph supervisor to demand his terminations and referred to him by his race size and jamaican accent and then wrote to the link here c e o and board of directors demanding  lizotte told him not to call a customer and secondly because he supposedly did not know when it was time to leave an office and in this case mr justice presented sufficient evidence which contradicted proffered reasons for terminations he met his burden on pretext race was a central issue during the confrontation with mr butcher at the clinic and mr bush's racist comments to genesis and in his racist letter to lyn were not pursuing a cat's paw theory of liability that would make clinton care liable for butchers potential racial animus if you rather you needed proof that when care itself was racially motivated by racial animus and as i understand you've not challenge that description of your claim as not advancing a cat's paw theory well the and we would again sir as we have all learnt that it was lynchers own discriminatory animists that the jury could look to and find from an inference of race discrimination and then how do you deal with the fact  when care hired your client just what two months before this incident fully aware of his race and had no problems with him until a customer complain massive organization i don't think was directly responsible for hiring him but to the point of the fact that he was hired and he is a black man i would only suggest that lynn sherr failed to do what it was supposed to read his investigate its tail to properly wage and sit or anything that was you know in mr justice favorite words believe what he's saying and instead of doing that it rids to a conclusion based on  angry racist letter from my potential customer and took his word over there mr joseph and even mr elicits protest that he shouldn't be fired so are you saying that it wasn't lazaro who had the that that she is the primary bad actor if you well and missed it was about was the secondary bad actor if you will and that she adapted his position and therefore the racial animus should be attributed to her indirectly yes the evidence and again these are all disputed facts which should go to didn't this guy been fired and then told him to fire and that's all on the record user disputed use or not disputed facts for the causation and the pretext issues are disputed and should go to the jury and and any reasonable jury could look at this and say of course they were motivated by his race they got this letter i'm saying this big angry black man was confronting a customer and we're going to fire him that's a race based issue that the jury should in could take and make  verdict in either direction whether it's for one care or for my client but at least they should have the opportunity to weigh that evidence where the district court judge improperly weighed evidence improperly applied the mcdonnell douglas standard and made errors that went to the heart of this case those are the issues that we should be vacated and the issues that we're all talking about now are what the jury saw the letter contains allegations of misconduct and it and it contains observations about your client's race yes and you're saying that that in and of itself is sufficient to create a jury issue as to whether ms the lose was motivated by the racial aspect of the letter that issue goes more to the causation in inconsistent by record evidence that is if you look at mr lazard's deposition testimony he says directly that he didn't tell mr butcher not to call mr i'm sorry he didn't tell mr justice not come and the reason that he was fired was not because of his conduct at the clinic but because of the phone calls and all of that alone is contradictory not to mention the fact that despite a loser the evidence that the judge excluded gives additional inconsistent answers and when coupled with the interrupted tory answers you have a very compelling case that these people are not being truthful and that inference can be drawn the inference of discrimination to be drawn from that fact alone in addition to the temporal proximity between what this letter was written on a thursday and on a monday he was fired without being question i think those facts are what we're really focusing on the causation and whether the imputed in you know that actions could times in all points on when you care people pointed to the fact that he had contacted back bottle or whatever his name was after the st unhappy interaction between them they differed as to some of the details of that as to whether it was in person or by phone but they're even told not to well whatever begin they all point in the details of material an important yes correct yes as to that reason and the other reason was he didn't know when it was time to leave an office and mr lizotte testified in his deposition that he didn't consider any of mr justice actions to be a well if i'm a man you can hear me i like to proceed on just a couple of quick points the three cases or three of the many cases we cited in our brief are very much on point and very much consistent with  be just you know inconsistent or absolutely inconsistent but arguably inconsistent the toll in vs cotton supreme court case from two thousand and fourteen warns that courts should not weigh evidence or ignore evidence that contradicts factual findings and then this court's opinion in ahmed versus johnston when clearly stated that it's what the jury and not the court to decide which sides evidence is more convincing and then the core of this case in the core of this appeal is that the district court judge weighed evidence and your sponsor too which is that well there are several different people involved in the decision they may have had in their mind several different versions of the event but that doesn't mean that any of them that there's any inconsistency other than the fact that one person was doing it with one detail being emphasized in his mind and someone well the same evidence that the district court used at the crime the facia staged there were two central arguments one is that he wasn't qualified for the job and the nd focus on causation and the district court correctly noted and correctly ruled that it was a relatively low threshold for him to meet that burden but that same evidence and it's on page fifteen of our brief mr butcher whether he violated lives here is policies d is in dispute and there is at least as much evidence suggesting that he met or exceeded  cares employment expectations overall and it goes on to say that he reports that he was violating a policy that he was acting inappropriately and that mr lazard agreed with him those facts alone which supported the prime fish case and causation also support the issue of pretext in addition to the inconsistent reasons for his terminations plus the evidence of the prime the fish case plus the temporal proximity and the close causal connection between these is enough for a jury to look at this and clearly clearly but arguably find them to be inconsistent and therefore pretext thank you mr clifford at this time we could hear from attorney mccormack and fifty five starting lines for continuing through lines ten he admits to calling the office about four times after he had left so it cannot be disputed that he called back after he last put it is true to fact that he was not told of the call he does dispute the fact that he was told not to call and two points on that st the district court's decision in which it granted summary judgment in this case did not depend on whether or not he was told not to call it came down to the fact that he as a stales representative of this company exhibited poor judgment in calling policy that the company has that that would be inappropriate behavior no the company does not have a specific policy in that ever that a sales representative should not try and make amends and in fact the company would encourage a sales representative true preparer in relationship however here the facts are that after he left the clinic he went to the police station and made a report he then called mr butcher back and one point just out of when you client fired him though you didn't your client at some point offers an explanation that he disobeyed a direct order from his supervisor yes your honor and in your we have to assume for summary judgment purposes that he did not that's correct your honor but again going back to the district court's decision in this case there were reasons provided by the employer or the termination relate back to the same two reasons one he did not know when to leave the clinic and who he called back multiple times but then why it compliant what if that's the case why when you client was asked formally to put down in writing and testify under oath as to why it fired him why did your client has the reason that we have  that mr justice be terminated upon speaking with a representative from the companies that he was satisfied with the company's phone call he did not insist at that point that mr joseph the terminated determination decision employer and you're your honor judge throw away i believe at the beginning you had said that you would also like me to address some of the evidentiary issues and i can do that now he would like to you i will i have i question do you maintain sitting here today that those documents that were produced and filed in this case are not authentic copies of the originals your honor the question about are your your your responsibilities when you're producing discovery is to exercise good faith in responding to it rather tori's requests for production of documents surely you would not have  whether the notes on the documents were offered by that individual if there were other things on the document that were authored by someone else and that is simply the point that i am a tool of documents at least are your company's perhaps that is the technical point but i do think it's an important point that the authors and the or neither the authors nor the company in its official capacity were ever asked to verify the authenticity through the discovery process full discovery was taken in this case and also to take this one step further were these documents to be admitted at each trial they wouldn't automatically be admitted simply because they were her ghost as part of way it works and is not a practical way isn't the way it works is that one one opposing party produces documents on their own letterhead in response to a request for their documents the receiving duckie d trial you couldn't stand up and say objection they're not authentic because you know they're authentic well your honor then it's going to come down to whether or not the district court's exclusion of these document amounts to an abuse of discretion because that is the standard that would be applied with respect to the exclusion of certain evidence and summary judgment well excluded that authenticating document then that would be an error these documents were produced as part of it derogatory right correct your honor they were produced as part of a discovery excuse me a response or productive for document were to include these four documents and consider them as part of the record on summary judgment we still have the fundamental issue in this case that there is no evidence of discriminatory contradictory explanations and also went on to say that in that case the quote evidence of age related comments could support an inference of pretext and discriminatory an at this time we can hear from attorney clifford and attorney mccormack if you could meet your audio and video and judge i think your microphone might be to bring it back up closer to your face stretched to where you are  can everybody see and hear me yes or be brief i'm going to take those points in reverse order and start with the evidentiary rulings and rule my no one is a pretty simple that events and says the proponent has evidence to show they are what they purport to be and in this case for all the reasons you cited for all the reasons in our brief the notion that these are not authentic documents is not only an pacific just give me a moment and i'll tell you what those are they are in the record it's area in august two thousand state seventeen say it had it had as anything with them that the within the content of those documents help your pretax argument because they all offer evidence that is what the jury to decide and what the exclusion of that assessment basically limited our ability to make arguments that contradicted the reasons or the support of the other reasons for projects such as the timing added and things of that nature with the decisions those ar helpful ok well for example on the the letter from terrify loose she states that being that this employee didn't listen to mr lizotte and returned to the office after his supervisor told him not to i thought it best to exercise the probation period and terminate his employment and again that is being that has been contradicted by mr as are at his deposition testimony when he says he never told mr justice not to go and as judge well i mean the the pelleas brief in our reply brief we addressed that issue and that's not what the record reflects that the record reflects that he was directly question on that and said he never told him do that in addition to saying that he never a base decision much else you want to hear about the evidence but i think that that was an incorrect ruling and use of discretion this could be that what i asked you before you leave it at that is i as your opponent to provide us with a docket that t point rule thirty three the federals of evidence allows respondents to the interrupted tories to incorporate by reference into their interest the tories business records and that's exactly what they did mr elizabeth was questioned deposition directly by counsel by saying showing you exhibit eight exhibit nine exhibit ten do you recall writing these you recall seeing these and the answer to those questions was yes how could they be excluded as not authentic or admissions if he recess until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting