fisher said to him i tried to placate him and say there will be other opportunities later so he watched for other opportunities later and instead he found that thermal fisher was grooming the white employees not promoting him and then after grooming the white employees was placing them in supervisory and manager positions for example the white employee  position without any posting and then after placing her in a supervisory position without any posting without mr baby being able to apply then promoted her to the permanent position of supervisor  over him and she had only been a champ rary employee lily had been below him and was working at a much lower salary mr a baby salary indicated his years of experience his good work and his education at a salary of over ninety thousand dollars goodness q and i realize you're probably trying to do this but to focus on how th these experiences you're quite right the record shows he applies for quite some number of a promotions and he doesn't get them the salary remains a good salary but i'm going to assume for the time being that not getting a supervisory position is its own kind of independent harm even if your salary isn't affected but we need to link these things to the kinds of discrimination that you're charging so the company has said in virtually all of these instances that the candidates that it selected were more qualified to do the jobs are all different the qualifications for a little bit different but out those facts on the face show that he was more qualified and that he held that position at lilly and had held other supervisory positions at lilly in that area t v leader and manager and yet when he when those positions were ransford to thermo fisher they did not place him in the manager position as they did with the white employees the other white managers so that was a different treatment of mr a favor right at the beginning and then when he complained about it well even he complained about it and they said other there will be other opportunities then thermal fisher started grooming the white employees without giving him incident where the question is whether somebody has this p p i experience and the stated reason is that mr abed they didn't have it and you have suggested that that's inconsistent with the record that he in fact had gotten to that twenty eleven year end review where he's getting at least just stay at standard mark for embraces p p i and  are there's other evidence in the record too so if you can show we were looking for p p i experience you didn't have any measure of that and yet mr bit of a head it that's the kind of thing that you can get your hands on  looking for you know more generally yes and that's why we drafted the summary of the evidence in the summary attached to the brief which was submitted as a rule one thousand and six summary used as substantive evidence because it is very difficult to go through resumes and years of the i denials of promotion well i believe you're mentioning on october thirteenth excuse me october two thousand and thirteen on appendix page forty six i think you're talking about the selection of thomas turner i am yes and so that's why the evidence previous evidence that the court ignored is so important and this case is about the court ignoring evidence which it cannot do specially after the ortiz decision so that's the important thing about the case the court cannot ignore the evidence and yet in this case the court ignored wide areas of evidence in in particular the evidence from two thousand and ten to two thousand thirteen right before this selection in which thermal fish are not only selected group to select a michelle dias but also groom the selected the white employee tom turner who worked under mr a baby at lily and had did not have the minimum even the minimum of five years of experience when he was promoted to manager  and so mr you mentioned well the way one of the ways that thermal fisher groomed mr turner was to give him a temporary project p p i right so he winds up having the thermal fisher p p i experience right that they're looking for in this october twenty third team well the p p i is nothing in was the sort of the team lead and then the manager and then a part of the company white audit committee which is a very important position as you can well understand and so  fisher is a group not only grooming the white employees but then saying we're promoting them because we groom them and the court said well you know we don't see any grooming well that's because the court said we're going to ignore all of the evidence between two thousand and ten and two thousand and thirteen that's why it's very important not to ignore the evidence which ortiz laid out so for your time expires i would like you to say a word about his retaliation claim because i take it he didn't get the first retention bonus that up to up to march thirty first twenty fifteen threatened it was the second one the second extension october that they decide they want to release for correct what why is why is it so suspicious to be asking for a release how many people were involved in that second extension approximately  i think nine in his area nine in his area so he's one of nine correct so is it your theory that they knew that he was the only one of the nine who actually had ongoing anything  needed to be released let's say certainly as a matter of fact that thing that they knew about was his last great three weeks earlier exactly this exactly and the court got it backwards and said in the order that he's asked to sign this release he won't sign it and so he's like oh without the second extension exactly and furthermore the combining a severance agreement with a retention bonus did not make any sense they were contrary and now i can go back to the retaliation in two thousand and twelve which is importantly the core of the nord is in that area that the court ignored he complained at the end of two thousand and eleven of discrimination and so shortly after that there were fisher told thomas turner his supervisor to change his ratings and lower his ratings that already been given him which was which was of changing the was a false action a lie and then thomas turner had just before that written the e mail complimenting which is an appendix fifty saying that he that others were nervous anxious and doing things out of line and so thermal fisher ignored that and told thomas turner who had just written this so lower a baby's ratings and then thermo fisher  them to back off a little bit because he said this is totally discriminatory and they said ok we'll put you in some kind of intermediate step and but it had the same effect it prevented him from apply for any other position he then had to take leave because he was so upset c charge and within two months when he came back immediately when they came when he came back they said well we're not going to change anything you're still in a coaching plan we're going to extend it but you can quit and we'll give you a severance bonus of two months at that point he could have kept his job kept his e e o c charge which he did he continued working that didn't satisfy therma fisher and getting rid of him so then in two thousand and fifteen after he filed this lawsuit they didn't say hey you can stay in the same position continue your employment and continue your charge for your lawsuit they said they  extended it two more months so they could have he could have gotten two more retention bonuses and has of the salary and had the opportunity to get other jobs but they said if you don't drop your lawsuit we're going to terminate you and they did and they did so which you can't to an employer cannot say if you don't drop your discrimination charge a lawsuit we're going to terminate you that's just totally on his face retaliatory and it doesn't make any sense because they were trying to keep employees not terminate them so if a severance agreement is only proper at the end of the work at the end of the three months or the end of that five months at that with the end of the work you don't you never say some general comments about the merits of the case and i think that we have to realize here that we're talking about at least mr darcy is trying to talk about a five year period of time these are separate employers i mean they got out of the business and want fisher to take over in two thousand and ten and after i believe three c charges all of the litigation connected with this case depositions exchange of emails et there's no direct evidence of discrimination there's no even straight remarks related to discrimination and we're talking about multiple different decision makers ok it's not as if this one person keeps making decisions as to for some kind of supervisory position and each time he's not chosen and you know there's also this question that he raises that the evidence from the earlier periods could be viewed by somebody as grooming people to take over i mean if you give people a break like mr turner you know who's fairly young i think back in the twentieth eleven period then by the time twenty thirteen comes along maybe he really does have more of this relevant experience but why couldn't trier of fact see that somehow believe you aren't one won't leave you in two by ten you get six or seven or you can't even remember how many instances there are that it's quite a number he plots a lot but they are as i should judge they are individual decisions made by individual decision makers and justified in by the way not that many of them are management positions  which some of them even have management titles but they're not manage it management positions they all paid last and mr beattie was making and you'll see that on many of them now it's a clear that he would have been paid less though because i thought  that the pay in the job title particularly for these people who had migrated over from lowly work tightly linked together he was given because of his pay at a level a he was given a concession where he was paid more than people that were brought into the rolls but in each and every case and we detailed this in the briefing that's in the the decision the individual who received it was paid less than he was and they were not all management positions and also by the way this is this idea of grooming is attorney argument it's not there's not factual evidence that supports that where it says hey the company went out of its way to bring this person into something tickler training in that mr beebe applied for and did not get it there's not support for this idea this is attorney argument as to how people got to different positions and the other thing that's very important about this he brought up this one position about process improvement in the same thing is done with this idea of supply chain i mean you could see the process  that process improvement is a general term we could also were involved in process improvement what they said they were looking for and it's undisputed is that somebody that was directly involved in implementing  quote unquote process improvement which was a thermo fisher plan that had thermo fisher training that mr turner not only had but i believe he was some sort of a captain or team leader in that particular aspect and mr going back and looking at his resume and said well hey wait a minute back here this is sort of process improvement without quotes around it or this is a process of proven and that's not what they were looking for and the supply chain piece even worse because again you can also say hey i have some involvement any manufacturing i had some involvement with the supply chain in general but that argument that he had supply chain wasn't even made to the district court i  a page up because i think this is important if you look at page thirteen of his mr gardner brief to the district court what he really argues is not that mr beebe had supply cha court of appeals again it's attorney argument to say well wait i went back and looked at his resume and there's an article here that might relate to this there's an article in there that may relate to this so i and  decided in the brief and i think it was also in the motion that there was also cases in this circuit where there are many different positions that people applied for and part of it is and i think mr  b b just assume i have these credentials i have this long time experience with so therefore i should get any position that's available over somebody else i don't or at least some of them so you know i understand your your argument i wonder if you could speak then for a little bit about the retaliation aspect of the cla a lawsuit three weeks later he's told you have to sign a release there was no release requirement for the first extension bonus so this was a change and the timing is funny like why doesn't why can't a rational trier of fact see that as evidence that he is who is the only one of these nine or so people one of the number is who had its pending charges why couldn't they see that as retaliatory there first of all there is no evidence linking it to retaliation you know there's very tight timing well there was twenty four or twenty five not nine i think mr dark purposely pointed to this particular area of their twenty twenty five people that were impacted by who are subject to the october twenty fifth extension or what time forgot that timing right right and they had already been told that they were going to be terminated as part of this process so what happened was that they were offered in connection with the release and an extension of their employment but that's exactly what had happened before back when thermal fischer thought that the transition process would be over by the end of march and in that first round there was no requirement to sign a release in order to get extended employment well that's correct but there had been multiple e e o c charges filed and by the way there was nothing in the record that says that none of these other people has zero issues with the company that is not part of the record there's not this i don't think there's anything in the record that talks about their protected files litigation and i'm sure you would agree i mean it's not permissible to retaliate against somebody for filing a lawsuit correctly so why couldn't a jury see it that way well judge but it is permissible and this is where i disagree that his regular practice for even people that are known individually to go to individuals that are known to have filed discrimination charges or pursuing litigation to say i'm going to offer you a severance package and among other things to offer an extension of their employment that is not uncommon in respectfully i think that it should not be discouraged to was just only one person involved in the company and said we see that you filed a lawsuit against us we'd like to settle for lawsuit you know we'll give you this much money you'll drop your lawsuit let me get a model that you're using you know let me make absolutely clear here judge  i'm not saying if you go to somebody out of the blue who has an expectation of continued employment and you just pull them in and say look sign this or you're out to war i'm not saying that what i'm saying is and this is comparable to the you and i have lost my allstate case isabelle's the case when it's already been determined that you are going to lose your job when this particular date and somebody comes to you and says hey look we got a deal for you we would like to give you severance benefits and then as part of that also we would extend your employment for some period of time that's not uncommon and there's nothing nefarious about doing it that wasn't even the case in this case it was offered to all twenty five of the employees who also may or may not have had issues that they were being asked to relinquish as part of their play in the case that he cites his two cleveland offices there's an eleventh circuit case where there is absolutely a lot of evidence that directly links the requirement of an arbitration agreement to discriminatory intent and it cited extensively in the record i would like to go to one other point which i think is unfortunate because i think that this is argued in a way that's not exactly accurate my complaint was very strictly construed in the district courts requiring me to mention every single position that i've lived for if you look at these complaints and there's three of those three complaints that he filed and everyone makes absolutely clear unequivocal language that he's not bringing up issues that occurred before that first position which was the crystal clear that he wasn't focusing on those he's not making independent claims i think he was arguing that this is part of the evidentiary background to understand what was happening in twenty certina and falling but would put out one of thing on that judge and it's in a footnote in the district court's decision i believe it was the last footnote but the judge pointed out that the evidence that was offered in connection with the ins was no different than the evidence that was offered to the connection with  subjective opinion no direct evidence no straight remarks just subjective opinions that hey because i have these advanced degrees and particular aspects of science and because i lay for a long period of time and did a good job i'm more qualified than anybody else that applies for would be physicians so she did point out that there really wasn't evidence to support those mr baby did not rely on his subjective opinion he relied on resumes which would compare in each case with our exhibit in the appendix relied on the thermal fisher documents and exhibits relied on thermal fisher trying to have tom turner reduce his ratings are relying on the from official records of placing him trying to place him in a p i p a and when they couldn't he objected placing him in a coaching plant is really relying on all of those records relying on the records that show the requirements for the promotions are showing the subjective selection of  wouldn't mr a baby was in a particular vulnerability but it would not have mattered if everyone had a lawsuit in a ploy or thermal fisher cannot say we're we're going to terminate everyone who has just crimina lawsuit that's just well that's not what happened here with that there was no as i understand the record no objective evidence of a continued expectation of employment after march twenty fifth mean yes john kerry was because they told him that a condition that's being imposed and something that the employees in this group have no right to expect or no basis to expect would be continued yes because they solicit bickley told him this is a year later after the first retention agreement discretionary benefits which can be conditioned on a waiver even if there's a pending lawsuit no they told them explicitly we're going to hire you if you release your claims if i told everyone to extend your employment for six months yes and robson versa shell oil company says that you can't even treat a former employee you can't deny a former employee employment because they filed a lawsuit so that applies to applicants former employees employees in this case he was an employee who was told you know continue to be employed if you drop your lawsuit now mr the thermal fisher said that mentioned the seven circuit case of obviously versus persis state farm that was at a time when there was a terminations and they were not going to employ anyone they were going to treat people as independent contractors which is not an employment so that's why there was no violation there furthermore there was no one in that position plaintiff in particular who had a lawsuit or any claim of discrimination and thank you all right thank you very much thanks to both