with respect to the summary judgment motion our position is the same issue he was never told that his position was going to be eliminated ultimately chevron decided to terminate him two days before he would have been eligible for the project dealt severance program on february th the amount of savings would have been in this is an issue from the district court where the district court did not address the amount of savings that chevron saved he would have been thousand and sixteen and this is significant because he was placed on this performance improvement plan which our position was it's basically pretax but in the grand scheme of things how can an employee fulfill  benefit and i think that relates to this honest police doctrine where that that's a fact we have a manager who's been employed for whichever one for fifteen years supervises mentors guides provides curative element to employees because they were higher up well i think that would be a fact issue because under the standard here the issues are what's the job what's the supervisor and we began the exact same job they overlapped while mr clone got mr shaw up to speed mr klein moved on they had the exact same job duties there's evidence in the record from mr yates one of the decision makers hear him talking about what their job duties were for mr cologne talking about what his job duties were and mr shaw in his declaration and they all talked about the same job duties the mere fact that chevron assigns a number which says pay scale grade isn't an element for determining whether they're similarly situated or not least in summary judgment we don't know what that means it's a number mr shot it was number twenty three and mr klein was the number twenty eight and that's all i know and that's all the evidence is and that doesn't make them not similarly situated  other elements of pretext was there's incorrect there's an incorrect date in the pip that was given to mr shah that miss harris was aware of and most of significantly with respect to the substance of the pip he was to explanation was could could be given there's also documentation about emails from miss harrison to mr yates to higher up after they'd already decided to terminate mr shop basically creating a documentation it when it's gone exculpatory paper trail to try to justify their reasons for terminating him after the fact and under certain verses freescale that's evidence a pretext  there's also been other evident objective evidence of mr shaw satisfactory job performance eleven issue that the district court brought up is it seems to focus on this language of specific inten in just looking back at the reports and really explain what a specific intent mean i don't think in this type of case it's any different than the word intent in a discrimination case it appears that specific intent probably means you can't have a disparate impact type claim in a research in a nurse a claim which may make sense but the problem with the district court's decision is that it put appears to create a a pretext plus argument saying that yes we need chevron may have all these false statements or inconsistent shifting statements but it's irrelevant because there's no other evidence of discriminatory intent and i think that's improper in this type of case because under st mary's the haixun reeves and those progeny you can infer unlawful discrimination based just on pretext and that's up for the fact finder decide at trial so their specific intention creates some sort of heightened element here assuming that we agree with you but why isn't there still pretext because he had poor performance august th the day after project delta is announced she criticizes his performance there's more documentation of attacking him and i think that's different then a few random emails where she might be of writing constructive yates that actually the deadline was october th it wasn't september th so he met the deadline even after that see things and for that in the pit that's evidence of her having knowledge of incorrect y basically indicating added value to this position but they've already decided to eliminate it so this is a situation where the job and the functions of it are arguably arguably pointless and they're telling him evidence from his declaration and his and his deposition that he was meeting the expectations the only evidence otherwise is coming afterwards is coming from the decision maker miss harrison who  versus discipline them to the extent that they're creating documentation to put them on a pit i would and so that's the distinction here just because earlier in the year you have a handful of e mails we said he should have done th we don't have the thousands of emails that it's going to change back and forth between them and so that's the difference here and so but even then at the end of the day they told him you're in date for the pit would think the evidence is the timing here because it is he his dad two days got to me th the other evidence in the record is that from the h r managers and when she come under the scope of project delta you can remain employed for two months afterwards so heavy that he could remain employed for tim has no evidence there's not any e mails or anything that would say that the person making the decision knew the relationship between a receipt of benefits and not i can prove that this is not a direct evidence case i wouldn't turn this into a direct evidence case i'm looking at the circumstantial evidence based on the time and the dollar saved and what actually happened and why it why revert back those two days you know why terminations and the best in date of his retirement benefits and the effective date of the project delta severance plan however mere incidental timing in the in the absence of any evidence of an improper motivation is insufficient to satisfy shall summary judgment burton shall recognizes that he has no direct evidence that chevron intended to interfere he admits that he relies purely on circumstantial evidence alone therefore the district court applied three terribly donald douglas burton ship the scheme for circumstantial evidence the began to work with with barbara harrison and her group that's documented in the record in the form of e mails where she would repeatedly reach out to him to let him know that he made such certain errors and data calculations and he also particularly had to have a problem with meeting deadlines so i think that you have to look back to the fact that these problems have been going on for a very very long time and even in his you know his performance management plan as early as all of march of twenty six he has his problems were documented the indication was that his performance was below the expectations of a p s g twenty three dollars employees at areas of independent work  the process so these were the types of comments that were repeatedly you know reflected and documented in performance reviews into e mails so i think that it's difficult to kind of look forwards and wonder why he wasn't terminated as part of the or that it makes sense why he was terminated in not because they were to stop or turn it into earlier that's still not clear but i think that they're what they were trying to do was to work with him i mean they know that there's not going to be a space for him anyway why are they trying to for you that's a lot of extra effort if you know the person's not working out you're not even going to have a space for them so i think they were trying to do whatever they could to make sure that he completed the performance of the basically why do they care if you complete the pip if there's no job for him at the end of the pip well it's i guess theoretically what could have happened if he didn't do successfully complete is put up that he might have been offered it the other position somewhere within the company i think that they were doing everything that they could to work with him in units trying to make him be successful in the position but unfortunately he just wasn't able to do the work his job was a very highly paid position and they required acute in a local skills and you know analysis of a documentation and meeting deadlines and those are things that he just wasn't able to accomplish i mean remind me of the record after they realize that this two days  time did somebody from h r say whoa wait a minute are we sure this is the right date because this mess him up for his benefit and that sort of thing but i don't think that that's really that's that's not what the evidence says what the what the record shows is that  earlier i don't think that it anything to do in the record doesn't support the fact that as anything to do with the rollout of project delta there's no there's no evidence in the record one way or another whether somebody of intially brought this to management's attention for them so they don't sue you later and that sort of thing but i think the problem was that they had made a decision to terminate pre book prior to that and it was i think it was in january and so they had already made with the employment decision know it was still prior to the rollout of president delta and so they just because he was you know going down this different pass from you know the project delta was kind of occurring in the background and he was in a different situation  had you know had long term employment issues they had worked with them and done their best to try to make sure he'd be successful and at some point they just decided that he wasn't going to be able to cut it but that doesn't mean that they need had to include it in project delta i think that it had probably had to do with her travel schedule and being able to come and meet in the official meeting with him and so you know that's why that happened and again there's two different pass where he has had long term employment problems they're trying to work with him but it's just not working out and then project delta is going on and he wasn't eligible for benefits at all and he was terminated before the date it became effective and also the the particular employees who would be included with them punching delta or even notified that they were about their positions were in scope until i think it was march so it's just not there's no nexus between the two and i think that doesn't raise any sort of genuine issue of material fact because even if they considered him even if it could be viewed as causing delta motivated determination the law is pretty clear that general cost cutting measures are insufficient to demonstrate an improper motive so even if you do it from the lens of well you know i guess it maybe was project delta that still doesn't help shaw at all because the law of says and i think the  circuit has made it pretty clear that that is not sufficient evidence to demonstrate discriminatory intent i'd also like to just briefly address the top of the retirement benefits  another important thing to note is that improper motive alone i'm sorry improper motive is more the results of more than an incident a loss occasion by the discharge is also insufficient to demonstrate discriminatory intent so the fact that mr shaw just lost benefits doesn't show that any any improper motivation that incident a loss of benefits are always you know a typical consequence when anybody gets terminated and he in charge made the mistake of not putting forth any evidence of any benefit savings that would've potentially helped him prove his case for example in the record he just makes conclusory all allegations about savings and he also refers to his supplemental responses to disclosures but that's not evidence his own conclusory you know allegations about what his last benefits would be he would have had to put words in some additional temple proximity was found based on the close proximity in time to even the terminations of besting benefits but there was also something else in the other words there was a finding or there was evidence offered that you know of the benefit savings or there was some substantial you know medical bills and so that was also could have been viewed as a motivating factor so i think that the cases also support our position that temporal proximity alone is he had gained any headway by making a prime official case which again we disagree with think that district court got it right it wouldn't even matter because he didn't even challenge the nd element that we stated a legitimate not  which is just nothing more than conclusory allegations and speculative assumptions that he had to do something more to raise some sort to raise a fact issue rather than you know again conclusory assumptions the type of  evidence that he relies on are just merely you know he tried he shot wants the court to make an reasonable inferences and that's simply not what the evidence shows for example and i believe he mentioned this before he refers to here as a statement of shaw's pip that he failed to meet a deadline but the evidence shows that he actually did fail to meet a deadline he and his supervisor were unsure of the act actual time in so the fact that yet said was just that he was documenting some of the discussions that he had had with barber harrison and others also saw also claims that poor abuse were supported because you perceive some positive feedback but that again doesn't change the fact that barber harris and his supervisor didn't really feel like he was doing what he needed to do to get to perform properly at so you know even if former harrison had been wrong it was her decision to terminate him based on poor performance and the courts should not be able to the position of nd guessing business decisions and but again i think another important point is that regardless of these decision makers didn't even know when his benefits w you just a dress a few points around the primus a shit case there is evidence in the record as to the mound damages but also it's not there's no requirement to put a dollar amount in the th circuit case of stafford vs true temper sports layoff or reduction in force there are many people getting benefits or they may have already been vested in benefits and you know there might be incremental increases given the project delta resulted in possibly one employee with no details as to the  amount i think that also supports the fact that when you compared to these other cases that his benefits would have been a motivating factor