permit a reasonable jury to find that oh ms wallace was fired in retaliation for protected activity or because of her race we are only are sure we are not going to claim that all the facts in this case are clear and contrary number of the important facts are very much in dispute and as i'll explain there's evidence on both sides if i might begin with retaliation issues there would be three possible issues in retaliation thing but here only one is in question there's no dispute that there was an adverse action here miss wallace was fired and there's no dispute about whether the protected activity the question is whether there's sufficient evidence of that there was a specific threat according to miss wallace by ms brown of about forty eight days before ms was fired the words according to the plaintiff were i will get you for getting me in trouble witness there is a requirement like that in the treason clause of the constitution but a single eyewitness account is sufficient to to establish an issue like this at least to get to a jury and the supervisor quite a rule and terminations that's not in dispute right the supervisor whether it was because of the attendance issue or because of the retaliation as you claim this is not a case where the supervisor is not really a decision maker or didn't in the dismissal decision itself seaton i understand does not agree with that miss rowe disagreed with ms brown's account so there's actually conflicting evidence in the sea greece with the employee about whether she don't or not i don't think roe kept kept those records i think her testimony someone else actually kept the records wrong whose account is that with regard to the events in the second half getting the she didn't specifically mention firing her we think a reasonable jury could infer that you know that even if brown didn't have a specific plan at the time she made that remark that was what ultimately happened chain of circumstances in this court's case and under mooney between that advantage which happens on or about december tenth and the dismissal on january twenty seventh in addition there is a lot of cases in this court saying the mere coincidence in time between protected activity and an adversary action is insufficient by itself but this isn't merely protected to be it's a threat and we don't think those cases are you're not relying only on the pro is substantial and they have shifted over toilet and i just want to walk through them as they're laid out in their brief but i think the litany is important here so the first one that's that's set forth this is when the plaintiff is fired she's told this is like an outsource  and that she's not needed anymore that's the last we hear of that there's no subsequent assertion of that justification it's just that's the end in the associate counseling which is what happens on january her own schedule leave days and therefore had none left and on the twenty third of december was off and wasn't paid counts i'm really confused right now because i thought we'd been talking about pre the evidence of it the whole time we were talking about temporal proximity we were talking about the threat you know a bit but you're saying you're taking this category out because you're going to save the employers reasons are not the real presumably done in each of our respective of historic change right yeah so my question is in ages are is there a document a piece of paper whatever shows or terminations that list their so we have a number of reasons that were vance that not being advanced any further and we get your point that there are you got that number of reasons what's the takeaway you want  have from them or get the take away want to have with regard to the reasons that have been abandoned is that they are changing their story that the reasons they gave at the time the reasons they gave to the c one the reasons that at the first half of the deposition before she realized it wasn't true and came up with the second story of those involving a band and now they've got a few that are left so if i might i thought i'd turn to the ones that  saw that's why i think the shifting reasons would be sufficient by itself but the reasons that are left with regard to those as well there's conflicting evidence are you not going to talk about your race discrimination claim if you're down to three minutes thought that this was couldn't be relied on to defeat summary judgment because it was in the words of this court is straying remark we think that that's incorrect the stray remark case law that that  flexible but do you meet the promise faced a test about whether she was treated less favorably than other similarly situated employees were the because if she was in a introductory period was she similarly situated to these other people that's you have to even before you that that's that's an issue in this case we we don't think in the circumstances of the case that that's something we need to do it again we have to focus in on what's the dispute about so the the first remaining justification is that the plaintiff had an excessive number of targets there's a conflict in the record about what the rule was that point she had or had six parties in three months that would violate the company's version of the rule but it would not violate the rule that set out in writing in her her mother performance  reviews in the course of the deposition plaintiff's counsel assuming that the rule was as they describe it asked her if she'd been criticized for her number of tory's expected she would have been and she answered no she'd never been criticized disagreement about the rule we don't think it's appropriate to be to be looking for a comparative doesn't make sense we have the wreck of a bank you have to have a comparative right off we don't think we do give the specific nature of the c we give you another example of that is a different kind of problem  material fact on whether seaton's a legitimate nondiscriminatory reason was a pretext for discrimination did brown according to the company participate in the decisions to discipline or terminate the plaint she did and as brown dispute that you heard her testimony was it was unclear there were there are portions of her testimony where yes she says i didn't have the involvement in terminating her there are other portions where she says yes i did i was involved in the termination they're not stray there is some evidence of circumstantial the good to be of the district court actually in discussing those comments and footnote on page nine of its opinion that the plaintiff does not offer these comments as direct evidence of discrimination she instead offers them under a circumstantial case when they're not called stray if they're circumstantial but that's the way the doctor nor if we don't have straight remarks except in the direct evidence after the supreme court's decision in reid's i believe we don't know we no longer call them stray remarks if it's not direct evidence so did the district court err record in your because the district court did not say these comments are not didn't dislike or didn't just write the comments off together the district court simply said these comments sufficient enough evidence for there to be a finding of pretext you're not taking the position that these types of comments are not discriminatory is a different question but are they race based absolutely don't think it's discriminatory to say to someone that they're to getto as records as some once s you know positive context i think i certainly think that the statements are being made in negative context on and i think if a a white person were to make statements absolutely they would be racist and discriminatory here given that they were being made by an african american person i don't know that that th would necessarily be discriminatory but but we're not we're not advocating in this case that they weren't race based and we're not advocating in the case your honor we think the case can be decided even if we even if we assume that the comments are discriminatory not at all trying to imply or cert that case of discrimination is that the plaintiff has to show that they were either replaced and that they were treated differently from similarly situated individuals outside of the protect class under nearly identical circumstances the rest of the evidence in the record is that the plaintiff was not replaced that speeded and they have not identified a single person who was similarly situated meaning in their probationary period and who had attendance issues and had conflicts with coworkers and were terminated on that basis alone you she in your honor we don't we the testimony case was that attendant standing alone would not have served as a basis to terminate wallace it was attendance plus that she had these kind of going conflicts with her coworkers plus the fact that she was in or in a repair that's what that the you had three things that you try to stick well the issues with there were issues with coworkers we know that based on the e mails that are in the evidence jury record that's not on her is it well the coworker one of the coworkers complained that she was creating a hostile work environment another one of the coworkers forwarded in an e mail that the plaintiff had sent to her in which the plaintiff had told her don't tell don't tell me make sure in all capital letters i do anything another e mail that's in the record was from the plaintiff to her supervisor linda brown with the subject line of may i bit or she takes issue with brown asking her a question about her work activities and thought she was suggesting that she wasn't really working and that she spoke to her in a negative manner so there and then there was another e mail that came in i think six days before the planes terminations on january twenty one in two thousand and sixteen where an employee had an encounter with her involving the way wallace looked at her so there were issues and was doesn't that she didn't like these people and also doesn't dispute these people didn't like her she also though agrees that none of these people made any did anything to her based on her race she she concedes that she says the only person it seemed who did anything to her based on something and they weren't sanctioned or terminated whether in introductory period or not but there the evidence of that actually wasn't conclusive that that person wasn't disciplined it was that we couldn't find a write up showing whether or not the person was actually disciplined but even if we were soon that person you know what i'm i'm not clear on what is your articulation of construing the facts most favorable to the nonmoving that's the part i'm not clear o probationary employees like the plaintiff would seem like go to events simple of for if that were the case the hospital just terminator because she was in her introductory period just like an at will person boom you're out instead all the shifting reasons as to why this was that if the answer was clearly you're in introductory period we can fire you we don't have to give you any reason you're out then looks like the introductory reason would be it but that's not the case i asked a question purposely of what is the h r record show was the reason for her terminations if she's introductory and she should go look like that would be just an intrigue in h r but conspicuously absent is was introductory it was this it was this no not there it was this it was that and then your seems to be at least in the vo parts i read some back and forth in terms of it so that goes away or some of these credibility since then the the the story from scene has been consistent it was that there was a tendency to choose conflicts with coworkers and she was entering a period so there really haven't been shifting reasons yes from the from the e e o c physician statement on those those reasons have been said to you later with more clarity but the reasons haven't shifted as we've moved along from the e e o c position statement until now they have remained exactly the same but i do want to know your honor that it's really at the time  terminations what were the decision makers thinking and saying at the time of the terminations and is it different from that point if it is different if they said we're just at will go home that's a different reason reason than what you're now arguing right you are but here there are there are they there's so if we can move on to the prime official case if we can go to pretext she still has to show that race motivated the decision and all she has is this alleged evidence of a discriminatory in the state all because again brown is the only alleged discriminator in those comments or it we look at her we look at her record and we see that there was an attendant counseling given to her we see that multiple coworkers are complaining about their interactions with her we see that h r conducts an investigation a seasoned h r professional with thirty years of experience have been employed by scene for ten years and a chore in connection with the manager determine the terminations appropriate in there just isn't anything other than those brown said go talk to these people the evidence in the record from it is that the h r is that brown did say go you need to look into this there are some coworker issues brown said these are the people who are involved with issues with miss wallace and the h r professional did only go talk to those people the h r professional didn't interview anyone other than the people who brown and said these are the people who i think you should do but at but the questionable whether so the fact but there's case law that we shouldn't second guess investigations conducted by h r professionals and sit is hyper human resources professionals might have been done a little bit better not when they're instigated by the person who's the alleged discriminator who says i'm going to get rid of you that's the problem here but i have a question about thomas the thomas case that you're relying on hon about this introductory in that case there was a specific regulation the federal law of this border patrol person that said that there was a different firing criteria for permanent and probationary employees in this case is there any evidence in a record that there is a differen bit separate and apart from just day a week that it's actually established in any kind of written or posted fashion that probationary or introductory employees are treated differently there is your honor there is on this point there is there is ms rowe the h r professional has her declaration which is in the record at seven thirteen to seven sixteen in this row her declaration she stated and i quote seaton's employees begin employment with an introductory period during which during which time their performance and behavior scrutinized to determine whether ongoing employment is appropriate during wallace's employment the introductory period is six months in the wings and during that time employees are subject to more stringent attendance policy and they also don't receive the say the jones case anthony lewis case did not involve probation or introductory that was not the decision made reasons for that that the thomas case cites and so the thomas stands on its own for this be enough for security firing that there were racial i am here and i want to reach for the terminator because they were made more than three months before the terminations and then all we get to look at all the intervening of this year on or is to look at the intervening because there's just in my view there's just there's enough evidence of vince that occurred in between those comments being made in her being terminated at a reasonable jury couldn't conclude there was discrimination also we have in this case your daughter the same actor in france the fifth circuit doesn't really get to get better on you've got to threaten or the the real problem for you in the thread the thread is a bit of an issue because it does come as counsel don't forty eight days before germination but all of the intervening events that i talked about the attendance issues the employees complaining the investigation all of that occurred after the comment was made by by brown to her the standard on retaliation is but for she's got a show but for her engaging in protected activity complaining she wouldn't have been terminated and here even with that comment being made fairly close in time to determination we believe that she can establish but still work because of all of the events that happened between that common interpretation your own and so i'm confused about you saying three months is not temporally proximate but the first claim it is and we have four months we said is still probative in the evidence case it no i agree that it is close in time yes i'm not arguing that it's not different just saying that proximity alone isn't enough and i don't think the proximity even with that comment forty eight days before is enough that you have to look at everything that happened after that the attendance issues and the employees complaining in the investigation  so i think when you look at all of the intervening events it's difficult for the plaintiff to show that but four per complaining she wouldn't have been terminated retaliation case and footnote two or their brief they've got their scanners at eight forty one the just a court decision i think takes care of that now with regard to the race claims to return the conversation we were having about who claims to be innocent suppose they had fired her in one of the and the reason they gave was that she shot the c e o and her defense is he's still a lot they've she would not have to find a white person who shot the c e o who wasn't fired we would concede for purposes of or even a case like that you would be fired for shooting the c e o but they knew she didn't do it and that's the claim here that they knew she had and that brown knew she had been an abusive to mccaskill florissant trevino but it was the other way the of the introductory period issues i need to go back to the point i was making earlier about there being three different versions of the story because we're down to the through the account that was given to the e e o c was that weighed against the plaintiff that when they made the decision to fire her she was still in the introductory period and roko said that at the beginning her deposition then after a break came back pointed out that wasn't true so then she came up with the second story and the second story was a new she wasn't in the introductory period but legal told me i could consider her in the introductory period which in the congo at the same is the first story that story then goes away in her death ration where she says well the thing is relevant about introductory period was that the of dance happened in the introductory period didn't matter when we made the decision they're just not the same story the race came last later the say we have to control for their own with regard to the same after doctor it wasn't raised before until now no and i think it would be appropriate to consider here in part because it raises factual issues when you start that doctor and there's something in the record that illustrates that when according to wallace's account which is having this conversation with braille and brand injecting that she's got a homegrown personality because she talks with her hands  and she says to her you didn't talk like that when i hired that's the kind of problem you have about the same actor doctrine circumstances can change and that was exactly what according to wallace brown said  work on the twenty second and twenty third of december and that the castle research was not authorize it is in this instance undisputed that the reason she wasn't there was that seaton ordered to go home because they thought she was sick they are not relying on that anymore as a justification in so many words rose says you could be you'd be punished for being out know that or what i think a reasonable jury could infer that the policy was not to punish people for being orders to go home abusing her coworkers again our contention is brown knows that isn't true and that the abuse was running the other way a jury would have to sort that out so the intervening events are suspect is everything that comes before and