christine brown appearing for the plaintiff rose robertson this appeal involves two distinct issues a question of whether plaintiffs presented sufficient evidence to create a genuine issue of material fact as to whether race was a motivating factor in her terminations and hand with regard to the f m l i a question of whether the court properly considered discrimination case is whether a reasonable jury could find that race was a motivating factor in the adverse action plaintiff robertson submit that a reasonable jury could most certainly find that race was a motivating factor in defendants tom and i should have our plaintiff contends that she should have survived summary judgment under the direct evidence analysis and the circumstantial evidence analysis and submit that the district court erred and finding that the plaintiff to not survive summary judgment under either of these evidence cherry model with regard to direct evidence the comments in this case were made by renee scott a decision maker in ms robertson's write ups and terminations ms robertson was a property manager of to defend properties in georgia when she was awarded property manager of the year in twenty four teams at that ceremony ms scott who was not her through provider at the time told ms robertson that she only won because she was black the testimony in this case from former regional manager shannon smith is that during her employment with  she asked miss scott to accept the position in atlanta and miss scott refused stating that she did not want to work in atlanta because there's too many f ing in words in atlanta i'm not going instead consistent woad some and undeniably racist comments and playing of cements that these comments are direct evidence of discrimination the district court disagreed are not direct evidence of discrimination because they are remote in time from and not directed at the employment decisions that plaintiff challenger thereby requiring  retaliating at her st not retaliating she began discriminating at helpless opportunity to do so the set up for terminations began within a week as misc otta mediately email ms robertson quote unquote expectations and noted that failure to improve within three months would subject her to disciplinary action as it happens ms caught waited less than a month to issue ms the comments were approximately a year and a half before the plaintiff was denied a promotion we have longer time periods and buckley vs hospital corps of america and bell vs cracking good baker versus rogers and willard does as to the timing of the comments ms robinson asserts that the timing does not prevent the comments from being considered direct evidence now with regard to the relationship between the comments and the employment decision plaintiff cements and in a case such as this eleven simply cannot divorce the racist attitude of the decision maker from the employment decision at issue in this case miss scott affirmatively stated she did not want to be around black people that she hated black people and she repeatedly particular decision a balding a black person be clear of that dirty lamp there is no evidence that she cleaned the lands for this particular circumstance now the right parts of south one case which and the court looked at two different definitions of direct evidence the dictionary definition and the preponderance definition our view of the cases that evidence was not highly analyzed by the court and does what right really look that was an analysis of the decision may rather than the definition used are the standard use for direct evidence and those decision in that regard buckley versus hospital the standard for direct evidence was not discussed same with bill v crack and good bakers and but in terms of the discriminatory animus that is evident by most cops comment shana smith testimony relates to this point about the employment decisions in this case she has asked do you believe that we're in a scott was out to get rose robertson countess yes i'm s the other higher up approval of of that actions because she's not only have friendly relationships with them there there is evidence from the smith of a sexual relationship with one of to the problems of opening the pool keeping it open addressing the fire code violations and other things of that nature yes your honor let me begin with what was included in the terminations notice those were the reasons for discharge not factually disputing the numbers that were included on determination notice but disputing that that was the reason for discharge when you look at the fact that her numbers were better in two thousand and fifteen then they were in two thousand and thirteen when she wanted property manager of the year additionally with regard to the pool years going forward in other words since it didn't open both pools and two thousand and thirteen it would never have to open both pools after that because if it did then that must be a pretext a pretextual reason for that is charged equation so would we be looking at a different circumstance if we had only the same decision makers and there was a different you know policy stated in twenty million one hundred and fifty two thousand and thirteen we'd be looking at a different circumstance but when i scott came and apply and within three months my client was terminated with the you know expectations and threats of discipline beginning within the st week when she appeared on the job majority of decisions on the question what is direct evidence follow the standards that was set forth by this court in standard be able services which is evidence that if that was the sense of a discriminatory inten which a reasonable trier of fact could find more probably than not a call for a link between the adverse action and the protected personal characteristic the precedential value of the decision is argued in the yes yes ok let me ask you miss mackenzie one something concerns me about this case and that is that well we've talked about direct evidence generally having to bear on the decision it has to be a comment or whatever in relation to the decision i do you know i think it's hard to argue with ms brown's proposition which is if somebody repeatedly and consistently and i  repeatedly uses terms like an word to describe others and it's a consistent feature of her speech and her attitude then why should we not take into account that it would have polluted and affected any kind of other decision she would have made why is that the case well your  claims here are to our position it's not that these alleged comments and i appreciate you noting that got to be and then we'll deny making them but we will assume that they are that the allegations are true for the purposes of today the decisions that she may or may not have that she was responsible for in this particular and again and how how from a commonsense standpoint could we come to the conclusion that assuming a person  so racist that they consistently and constantly use the n word and otherwise reflect a racist attitude that that racist attitude does not change their employment  can you hear me i can hear you now were you able to hear my question hello ok i was and my response to that was that it until today my response to your honor's question was that the the standard even the standard that is articulated in right is that the statement itsel must connect a discriminatory attitude to the employment decision at issue the standard in no case cited in any brief anywhere is that if an alleged decision maker has ever made a racist comment then that automatically mean direct evidence it is certainly relevant to the question of circumstance to the circumstantial evidence analysis i absolutely agree that it is appropriately introduced that there but direct evidence under any standard whether you're looking at the right case or the able services case requires the statement itself to connect the boat the racism or whatever the discriminatory attitude is to the decision is in question because it is possible that people who espouse discriminatory views may know better than to practice those in the workplace and which they work and so that's why we have two different standards yes ma'am councilman ask you a question that in answer that she was in fact a employee for purposes of the family was a legal conclusion that's correct right yes i guess my question is and this is i'm sorry your honor you could you repeat your question well you agree that most of the time if the statute does not apply to an employer you file a motion to dismiss correct yeah  so why would then a defendant ever follow a motion to dismiss if they could just admit something as a legal conclusion and then after discovery has closed then ask the trial court to disregard the admission because it's a think that the district court considered the and consider heavily the fact that some mistake in admission in our answer was not done to secure any court of benefit in this case that the evidence is appellant was in fact she did conduct discovery on this issue this fact came out in a deposition in which she was afforded the opportunity to ask questions of that witness and this regarding the appropriate number of employees and so there was discovery done the record is also undisputed that that deposition occurred more than two months before discovery closed in this case and so she had two months to conduct discovery on this specific issue and she chose not to the record is undisputed that we offered to extend discovery so she could conduct discovery on this specific issue she chose not to voluntarily produce an employee report on the issue of the number of employees we have after the deposition and offered to conduct a thirty six witness on the issue appellant turned us down and so the position that i would take is that sort of gamesmanship that the court is concerned with where a defendant might miss something and then withdraw it later that's actually the behavior that the appellant has displayed here because especially when this back came out two months before the close of discovery riverstone did everything it could to address it and allowed her to conduct discovery and the response was simply i'm too busy to do that you know you're stuck with what's been your answer  in the argument this moaning and if there is any dispute or dull about the legitimate reasons that the company put forward for all the proceeding under the mosaic theory the problem with her theory is that she is only presenting the court with a handful of tiles from the mosaic that ignore the vast majority of the record in this case and i want to address in particular why the comments of the are not the slam dunk that they are portrayed to be appellant has consistently in this case oversold the role that ms scott played in these write up and in this term the nation to begin with documented in the months before this ever became her supervisor they are not this isn't an employee who was a superstar and then had her downfall once miss got became a supervisor she received a performance evaluation from  documenting the problems with a are in occupancy remaining and she was demoted shortly before ms got became her supervisor so again these performance issues existed long before  scott became the supervisor so that ms got them followed up with her a week after she became the supervisor just a are an occupancy need to turn around it's not as nefarious as it seems because appellant has been hearing this from lawful buying which he admits is not a racist for months ask for the terminations it's very important to note that miss scott yes she was involved she was the lowest rung on this ladder by far shortly before the terminations h r director hilary snyder and the senior regional manager maslov the blind who played if it meant there's not a race either one of them are racist physically visited the property and found it to be in such disarray that it was supervisors supervisor all three of these women testified they never heard scott say a single derogatory thing about african americans never heard or use the n word there is simply no evidence that any of these numbers which are undisputed they don't lie and occupancy numbers again thank you so for all of these reasons are on the we would ask that the court affirm the decision of the district court thank you counsel and that brings us back to ms brown you have four minutes of above time thank you your honor i would like to just start by saying that the area manager or issue is a red herring indeed he ms roberts and was a store as a property manager not only evident by the fact that she got property manager of the year for her performance in two thousand and thirteen but cost so she was a star the property manager and them having her sobbing in door rolls for a limited period of time which she position she was happy to leave and go back to being a property manager is simply a red herring in the case with regard to direct evidence i think you know are overwhelming point here is regard less of the definition used of the two set forth  right we contend that the statements are timed to the employment decision here they cannot be divorced from it and thus their direct evidence but at the attitude influenced the decision making process here she's the direct supervisor she's the one raising these issues instituting the wideouts and you know there's plenty of of evidence and the write up that ms robertson wanted to give to two maintenance workers one white and one black for failing to timely complete maintenance tasks  one for the white worker was not allowed having been told by ms lawful bind that she and the scot spoke and determined he would not be given one because he was a quote unquote good for whatever reason he decided not to give the write up when my recollection of that your honor is that my client presented it and that it went through the  to give him a ride up i'm sorry i did also want to comment briefly on the