our third case for this morning is miller against salerat american in a separate training room by herself for about a week and showed her training modules while there were new was going out of the room didn't younger one of the new  think issue in this case the reason that the people who did fire her gaze was that after eight months you know she just it was not anywhere close to their expectations she had one day in eight months where she exceeded the two hundred sixty trays per day requirement and most of the time she was so far below that that even if you factored in some level of disadvantage from tampering or from bad training you still can't fill that gap  so it's it's hard to see why when all is said and done one could find that she was that that her adverse employment action was taken for an impermissible rea argument there just ignores all the evidence because for example as soon as miller complained about the race discrimination being called the colored girl not getting equal training not getting help from the white employees like the white employees helped each other brother just sticking their head in and seen that she was done yet so they could go home she complained about that and instead of correcting that situation and providing her equal treatment polaris to miller approved she run to ballard in particular became very angry at chantelle miller who ballard seems to be an awful person but but the the thing is first of all we have to see who are the decision makers and i understand your argument to be that the people like ballard who were more on the floor made it impossible for her to come close unhelpful because the way to change unequal treatment is to have that treatment become equal not to separate or segregate the african american not the sample processors and show them how to do it and then correct them give them hints on how to handle the accounts which was very important because after the formal training in the classroom which shontelle miller passed and had no problem with and she also had data entry experience before she was so she was an experienced data processor so instead of having that training from run to ballard in the department she had to leave th department go try to find the manager who was often not even in her office but was around the plant somewhere else or even out of the plant and other locations around the country so so if i can trade a question maybe a different way so there's this big gap between what her performance was except maybe a day or two in the quota right is that is there any viable argument that this unequal training etc can account for that entire gap oh i have absolute what is what is you all right how do you how do you get from down here to up there ok there were several methods in addition to the unequal training that ballard used to retaliate against miller for instance another method was statistics i think oh yes but so how much of the gap does that account for another was i guess what i'm saying is if it's this case and going to trial you know you are going to get the argument that you know the quote is whatever it is and she's way down here even if you account for this lack of training it's not enough to it's not enough to get her up to snuff how were you going to try to defeat that argument at trial first of all there's no evidence that the lack of training the harder accounts the refusal to talk to her treating her as an outcast and making her help making her work hell every day there's no evidence that that had no effect on her performance of course it would have her effect on her performance now here is that an experience data entry person who is african american but she's done this before she passed all of the classroom training and yet when she is given accounts she's not told how to handle the accounts this is very important because each account is handled differently as a matter of fact there are harder accounts and harder to raise than other accounts in other trades and the evidence was that ballard in her anger even said to the whites here i'm giving you an easy easy training now and she never said that to shontelle miller there's no evidence that this had no effect on her performance of course it had an effect on her performance met effect she is an experienced data processor who knew her performance capability testified that that was the reason that she was not able to obtain the quote until the very end where she was trying to come up to the top and finally got to the two hundred sixty  of april's again she was very close to it i mean that was also due to the lack of training the harder accounts the failure to talk to her i mean if you were not trying to you came into work every day and nobody talked to you nobody trained you nobody showed you how to do the accounts you had to do that would be terrible so there there is no evidence that they're that had no effect on her and that's just an unreasonable entrance and inferences can't even be argued on a motion for s also there is additional plenty of additional evidence young reported this and in addition to miller and no one did anything about it in this matter fact when miller complained about the discrimination they did not investigate in march instance she was shown to miller was terminated based on the probation notice second retaliate retaliatory second probation notice which was retaliatory in itself and that then referred back to rhonda ballard's review of her and the quota set by her by for her by rhonda ballard and in that review it states that she was given a lot of paperwork charades which means that you can't just enter consecutive instructions on a tray you have to follow the new instructions for each piece of paper work not only harder accounts but was given paperwork trays and so it was observed by miller and by  she did not assign accounts it was the accounts of there were the harder accounts and then after the morning when she when shots organized the trays then ballard would go through and not only sabotage  tray for you and she never said that for miller and rubbed it in the face of miller now on the sabotage which is very important because you don't often have in a discrimination case evidence of sabotage against the african american or against minority employ investigated and just stood up for ballard and protected the discriminator ballard now the point is that sabotage is done in the dark like many done without witnesses and so the fact that someone was caught a few times does not mean that that was the only time they sabotage or trace and miss miller testified that ballard gave her made her life made her work hell every day she complained almost every day she knew and knew did not do anything i did not investigate did not take corrective action so knew was personally involved and then when when miller complained a second time to the h second probation after she just finished her probationary period and then it was so it was retroactive there was probably no way that anybody could have completed it because they didn't even teller for seven days so that was retaliatory and then they didn't investigate and then when she complained that hey this terminations is based on the previous discrimination retaliation they didn't investigate that nobody investigated that nobody took any corrective action thank you very much ok thank you opinions speculation but very little evidence he referred to it as evidence but in in just those few minutes and you you all have the record many of those things are simply not  the very first day together there wasn't a week in between they were very short staffed and rhonda ballard and gina camp where the fastest processors they were super fast and so debbie knew told everyone don't interrupt them we need their production do not ask them questions and interrupt their flow so what what about the statistics that mr durst cites in his reply about the percentage of the more difficult types of  the plaintiff supposedly got simply not true and is making up the numbers that well the way that he did it he said because she processed less even though she had more she had few add changes which are is a kind of a difficult step then that means that she had a greater percentage of add changes which is just doesn't make sense i'm sorry from a statistical standpoint miss miller herself testified repeatedly that there are some easy paperwork samples and some hard paperwork samples there are some difficult and some not difficult some paperwork has more work has less work than other paperwork all of the sample processors complain that they got the hardest samples and that is don't we have to i mean that at least i think we have to take in the light most favorable to mrs miller i mean as i understand the essence of her theory which is what i'm hoping you'll have something to say about you is that this case should not be looked at the last minute when called new when men jews decide they're not going to what they said to fire her because the data that they're getting has been  distorted by all of these different forms of discriminations not that the numbers are was wrong for say that the numbers were that she was put in an environment in which her numbers couldn't be better than that and if that's the case and if we i suppose clients more difficult samples there is a perception by miss miller of that there is no evidence i don't know that the young testimony for example young said around in trays one is because there are brush projects that they pay more to have those done and they have to be moved to the front of the tray i have no idea on that particular situation but isn't one reasonable and certainly going in for a lot of things from that is one reasonable inference from that given to the other testimony about ballard's racial apparent racial animus release comments about apparent racial animus that when she says what i'm trying to do here what i'm trying to do here is make it harder for her isn't a reasonable inference i would take that reasonable inference for that one tray and i would also i mean i think it's important because you now raise bellers racial animus it never although mr darcy said never was said never crop rated that rhonda ballard said the other thing that i think is important in you mention and you know we have to look at what we have wasn't there testimony from ms young about this conversation where ms kemp used the n word in in referring to ms miller  belhadj presence and ms ellard laughed and said i'm in the same boat with you michelle did make that you have that's that's evidence of animus isn't it that if it means somebody makes a racial slur and i laugh and i say i'm in the same boat that that's pretty good evidence of person who makes this comment well don't take the sample this is what i'm trying to do here and there's some evidence maybe it's not the separate steenkamp or sation maybe it's the other that this person has this racial animus isn't isn't one reasonable from that that when she says what i'm trying to do here what she means is that i'm trying to make it harder for his male in that on that particular day with that particular train yes i will you have to prove it for like ten thousand you have to have a comment for ten thousand well there is no other evidence miss miller yourself but but but but miss miller herself for example when she had her performance evaluation which she was told after four months she was only doing one hundred twenty three samples a day and again this is an average so she got two did that day but then across a month if you get a daily average yes you get a daily average so the denominator is the number of work days and the number of work days exactly and so for example the argument about well she she went on probation four days after april started you know it doesn't matter you just hover many days you work and divide it by that number of days that she went on vacation the week after she was put on probation so i guess i get that i mean in other words you purtier point is that she you know she she she was so far below that she couldn't  that up the average i guess what i'm wondering about the probation thing is what are we to make of the fact that they put her on probation retroactively and then they terminate her before the probations done are you saying that's not true either well no they they  put her on what happened is she failed she was given the first thing after performance evaluation you need to improve to two hundred sixty by the by march by the end of march and she was one eighty nine ok the first four days in april she started going down because she actually did decrease less so they said this is not looking good they told her on the fourth of march or the april fourth of april scuse me that she would have the rest of the month to to get up to two hundred  sixty they didn't not count her days she was she was given full credit for what she processed in the first four days and in fact i think we did a calculation a reef ok let's give her the maximum for those first four days we'll just give them to work and we'll do that into the calculation she still falls far short she complained veracious liad that she didn't get to do the last day and i think it was because someone was going out of town because she would have had to process three thousand sample or not surely fifteen hundred samples in one day to make that that came for that wasn't going to happen she had never done that so i mean a lot i guess what she was trying to say if you tell me on april fourth or whatever the day was a few days and april that actually now i'm on probation for april two and i had i mean what i meant for him from that is had i known that i was under this spotlight i would have been moving heaven and earth to get those numbers closer to or in excess of the two s vacation well we i'm saying we did did a calculation we're saying let's give her the total total amount but she had a rep you know and when she says she wasn't told early enough she was told in february they could have terminated her after march when she didn't make  it they gave her yet another chance she had already been there six months everyone else was doing three hundred nine three hundred sixty three because once they meet their minimum quota which two hundred sixty was the minimum quota then they get their courting creeps in so they were all you know far above her miss miller herself so just the record shows the gap between her and arches in the next person she was twenty seven to forty four percent lower than all than the other processor yes so she wasn't just a low of that process and she herself testified in a number of occasions that because there was a question about her training and how that impacted although i think impossible to say how a particular bit of training may have impacted it she said the numerous occasions i got all the training i needed and asked for i got the training to be able to do my job i grasped it and apparently she didn't understand because i mean if you  see our briefs on more than a dozen occasions she made statements and they are presented as evidence that says i was making my quarter the in the two weeks before my terminations i had started to make my quota i was making it every day simply not true it's not true but here's the problem we have a case where it seems that she was subjected to racially discriminatory incidents and at the same time she's not making quote it so how one teases out the effect of the racial discrimination on her performance isn't the easiest thing in the world to do it's you know of course companies are not required to keep people who simply can't do the job and i'm sure that's what i mean as essentially what the players people said when they let her go if you're not doing the job we have to have somebody to process right and that that is tainted by this racial disparity in those three decision makers who looked at the data who completely made sure that she had been given two and more informal fair warnings who looked at what other people were doing who looked at the training and  ms miller had said that she had gotten all the training she needed those people looked at that evidence and they made a decision based on that now that i mean we talk about this racial discriminatory sort of thing ever performance evaluations miss miller didn't didn't say rhonda ballard is mixing up my trades rhonda ballard is not speaking to me she made no comment she said i understand i need to do better at her performance evaluation she did not say any of those things there is no evidence she she didn't she did not try to justify her low scores by anything other than the fact that she just couldn't do it that she just could not do it and the decision makers had the information that they had which was clear and you know undisputable was that she was far below she only made ever made seventy percent and in fact in april she went down from march and it was in november that she said she got all the training that she needed but in all of those months she was unable to come even close now i would say and i don't know what the company would do but let's say at the end of april she had been at average of two hundred fifty five i can't say th might not have been different but there seemed to be no way that that was going to happen everyone else had been able to get up the quota within about two months even the two people that started just about the same time as or even amanda knew had exactly the same training as john tell miller did working with debbie new who is the manager of the department so under no under no method of proof is there evidence there is lots of supposition and perception and and statements that are just completely contradicted by the record that ms miller makes but there is no evidence to support any of the elements that are necessary for this case to which would be to forty per day and that was more than a year after she was hired so until miller was not given that opportunity as a matter of fact palermo's keeps saying that it gave  shontelle miller three opportunities it did not as a matter of fact it set her up to fail it gave her a performance she's me a probation notice second probation notice that was almost impossible for anyone to complete according to to pull heiress and didn't even tell her about it until after seven days passed she'd already told in march the h r manager sigler the run to ballard are still doing these things sure and instead of  of taking any corrective action they put her on an impossible performance improvement plan that refers back to the evaluation on its supplemental appendix one in which the company valor in particular said she miller has been given several challenging customers admitted that and has adequately logged those samples and then down below miller and i won't quote it but talked about how she's been given minute or something and those customers were hard customers and both she and young identified those customers as hard customers the hard customers that she received she had to spend forty three percent of her time on so she couldn't get up to the level of the other of the samples done by other sample processors because she was tech kept tight at forty percent more than forty percent of her time on the hard customers the other