first that there was evidence supporting a legitimate nondiscriminatory reason for ms forte's terminations and secondly that there was no evidence upon which a reasonable juror could conclude that this was just purported justification was pretext and as far as the performance justification or not the test is it isn't the test whether or not there is a reasonable have for instance mixed performance reviews some of which are positive some of which are negative and that would not overcome the the claim of of there may be isolated points that one can point to on either side but that's not going to be necessarily determined well and i think that's where that's what you're about to do so i just wanted to and i understand your honor and i think that's where the  district court got tripped up because i think that judge tourists started weighing the evidence and looking at it well you can look at it this side or from that side and trying to decide work for the plaintiff and i think that's what happened here i think the judge started to cross over into weighing the evidence examples where the district court when the it's well for example the  seth merrin the owner of the company brought in two males to replace or and essentially divided her her responsibilities and mr eskandar had been on that job for ten years or so she had been on the job for one is that right that's correct your honor but miss for today had spent twenty years in that effort well if you base pay wasn't that different but if you look at the entire compensation package which is how these people view themselves as being compensated i mean you go there you go to a small company like this smaller i mean it's five hundred million it's not that small but there aren't that many people working there you leave a goldman sachs or some one of these other types of firms dark was a marketing guy he had just started the sales job which is probably why he left shortly after ms forte joined marrying got rid of them and so she winds up being promoted to his  job within days of having started with the firm which which gets me you're saying that this seniority or that the tenure his tenure in the position should have nothing to do that doesn't disqualify him as compared to or exactly because what we were talking about it in a wall street firm like this is how they determine compensation it's what have you done for me this year every they want to see what your revenue responsibility is how you've increased sales i mean there's a small kind of amorphous factor about corporate citizenship but the bottom line is how much money you bring in the firm determines how much you get paid you can be there for twenty years and you have a bad year your compensation is going down that's that's the way it works is there's no there's no tenure on wall street as i as i mentioned i wanted to say this to the district judge but you know this is actually the first time we've been in front of an oracle three judge in this case we were in front of the magistrate several times and we never had so negative reports starting out in in the middle of two thousand and twelve about her that she was late for meetings that she wasn't showing up and she canceled meetings of the last minute that there was poor time that she didn't  when she reported that he had read the riot act there was no mention of discrimination at that time and and so there was a period of of evaluation going on here now kelly gave her generally positive valuations was going deeper than that and looking at her subordinates and so forth and what they were saying and he came to not have confidence in her now how is that a pretext for discrimination that's because i understand your honor well i think you really put your finger on the point that i was about to launch into which is if you look at the record in the case and the but prior to the july two thousand and thirteen meeting with marin where he says he gave her a final warning she says that did not happen there is no disciplinary record there is the one e mail that lou jeanne sent in the end of in two thousand and twelve saying back he's unhappy with sales sales was in you know on the ropes because of this whole s c c investigation they lost sixty of their customers and and ms forte got forty seven of them back but other than that e mail which is her e mail not and she's just saying you know he's upset about still she's not saying he's upset about me he wants to see this unit going better and and there is no record of performance up until you get to this e mail that he sends to jerry majority or the h r person in july of two thousand and thirteen saying i just spoke with her and i gave her a final warning and then i take his deposition in the case and he says nobody gave her a final morning news that's five months later that she's trying to reince it's not even morning and then she's terminated the next day and i think she would have been terminated sooner if kelly wasn't trying to prevent that because he saw she was a quality observed there's a multiple emails and admissions in the record as to the performance issues subset of performance issues as to why they took the actually took number two there are also positive evaluations why isn't there an issue of fact as to the quality of her performance there is a huge granted there's lots of evidence of that performance but there's also some evidence of good performance there is a judge in the law is that you can have supervisors with a different point of view on an employee's performance but when this initially and that but but a jury could certainly say we think these eleven affidavits far outweigh the positive evaluations but the question is that the summary judgment stage is the court not weighing the evidence one of the size that the eleven affidavits are more persuasive than and the good evaluations and i think you have to look at the underlying issues here is was there are gender discrimination and i must join that but but but but the cost the  purported reason for terminations performance and if there's an issue of fact as to performance then you know there were look there's other evidence as well but why isn't there an issue of fact on performance because the very person who gave some positive valuations was in full support of the termination and stated in deposition affidavits that discrimination was not a factor that was a performance based terminations along with the c e o defended merit and if and c e o marion made it clear and numerous occasions to the plaint that he had serious concerns with her her performance over a year and a half period so i think yes there was some positive feedback but overall the performance issues trumped anything else and it was not just the c e o defending america not just t about and others and behavior such as not being invited to a meeting after closing and we have that girl in charge of our company's revenues and reference the saturday night live routine about that slot harney because the one many of those statements are denied by defend america to their isolated unrelated to performance of the play to three they're unrelated to anything to do with the timing of or terminations are isolated comments that have nothing to do with her performance we don't know when they were made who they were made to who was present there just isolated comics who hear of a hostile work environment know it or not know your honor i think to trace found there was no evidence whatsoever none the less she did examine those claims in and roll that there was no basis whatsoever there's no facts in the record didn't she say that there had been a claim to that effect it but it had been abandoned i'm sorry your honor didn't she say that there had been a hostile work environment clean that she had been  that argument cuts against the appellate it was defendant marin who brought on ms forte he promoted to this very significant position very highly paid and if i may just turn to footnote four of our brief on page fourteen  more experience much longer obviously if a company she's failed to come up with any significant documentation or evidence supporting gender discrimination and that i think is the bottom line here there's lots of noise about you  know statements about discrimination but there's no evidence and i think judge george was correct and ruling in summary judgment in that regard and i think it is you know to judge walker this is not a case for the jury there's no evidence here there's no doubt there's no suggestion that true he was not paid that much like many of the senior executives of the company they were potential are issues and stock options he didn't receive them and there's no evidence in the record that he did it and moreover there's no evidence that he similarly situated to her as judge walk and i wanted to say and for size that i think there is no question that that report was faulty in every respect it didn't account for any nondiscriminatory factors in the decision didn't look at the entire sales force is it the report took all the evidence that the plaintiff gathered and she had many opportunities and got virtually everything she asked for from either the magistrate judge or judge tarzan but the pool of the end of it employees who were considered did it encompassed all sales employees male and female for the two years in question i believe were they selected i believe well number one the plaintiff gathered that dating gave it to the expert i believe it was all the sales reps involved i think it goes to both you and i think it's so faulty and it's failing to analyze the relevant data here both and weighed in admissibility it shouldn't have come in and i think the judge was right in that in that in her ruling and could you circle back again to the performance issue in the mixture of positive reviews and negative reviews why why isn't that enough to give plaintiff a chance to establish that it was pretext in fact because they were not uniform well that's not that doesn't establish whether there was discrimination here in the fact that different people have different views of her performance doesn't bear on necessarily that question is this court is noted you don't see it as a super personnel agency to determine whether somebody is a good or a bad employee  discrimination the question is whether there is enough specific concrete evidence of discrimination in the record to support a jury verdict and i think your choice is right in saying no there was not absolutely no evidence and i think she gave a thorough analysis of all the current and assumed where there was any issue to that plaintiff's benefit in her decision she says you know i give her the benefit of doubt in france that yes your honor and i think that was correct but she did say it country to report so the argument is that there is absolutely no evidence of gender discrimination what is the evidence and we need specific evidence not just conclusory beliefs and well i interrupted you would need to be enough to establish that the performance issue was pretext correct yes i understand your honor as to the federal and state claims not as to the city claim by the way in the miller case from this court it was made clear that we're dealing with a very different standard now granted the district court if the federal claim is dismissed could send that case back to the city claim back to state court but there is a different standard that we were dealing with and let me give you some of the high points of what what we rely on to what was done of course and so as judge had brought up the only senior female executive it's actually the only female executive with revenue responsibility the h r person did it was group that they have as a group of like twelve people there or they have a name for it they don't call the executive but it's the operational group but but she was not in that group but she was revenue responsibility i appreciate judge walker's point about the expert didn't take into account tenure but again with the sales force they were all the same organizational level by the way these are all sales rep wasn't just it was just tenure i mean the district court relied on many factors that the expert had failed to account for she said tenured position organization level well the organization level and the position of the saying there all salespeople tenure may have differed but they're not problem on maternity leave policy where the women were not receiving credit for their for their commissions and straightened that out and after she started rectifying the compensation imbalance with this with the sales force which is a part of the statistical evidence that we put in all of a sudden she gets excluded from the from the board meetings and so the men are being treated differently than the women there is marin's behavior the comment about we don't want eighty percent of the company in this girl's hands  having his girl for saying i want my girlfriend to be in charge of this i'll go routing strategy she's failed the series seven three times i don't always think maybe she will pass it next time but i want her running it that kind of thing is demeaning to her and he's done doing that to the men why