may so we understand what the case is do i understand correctly that what we are talking about are essentially five claims that is disparate treatment  this is this is an unusual case in a sense because of the two surpluses here which is now a a a euphemism that i in and of itself i i find a bit unusual of it to declare someone surplus but in any event i know what it means in the context of of this case but i'm having a difficult time and i hope you can help me here understand how the two surpluses relate if if they do that is to say that the january surplus ultimately leads to ms fowler securing a position she was not terminated indeed she was given a choice between two positions and she elected to take the one which ultimately in the so called october surplus resulted in her eventual e conceding that she was not capable of the job that it required a skill set that she did not possess so that to refine my my question then is why is this not over after the january surplus because of her election of a position and then her eventual admission that she couldn't do the job fulfill the requirements of the position that she took in new jersey following the october surplus well there are separate challenge that resent actions your honor in as much as misspell or must navigate or the ballard can successfully navigate through as well and and and the district court did analyze the st surplus did it not yes your honor that th assuming it by the prime of facie case stage and you have the company come forward with its legitimate nondiscriminatory reason how can she show pretext in an age case when so many people were retained in the course of that reduction in force who around her age an even older well that if your honor that if you're discussing is there is a prime that is if you can point to employees that were retained that are outside of the protected class or in the case of an th case additional younger if you can point to just one employee like that then the court how is this inflated reason implausible when as i indicated in my previous question you have so many people who are retained in the course of a reduction in force not a terminations or an action of any kind that starts that is targeted to her well age discrimination can occur even if an employer does not fire other employees in the protected class and the supreme court made that clear in the o'connor person consolidated  receive higher ratings than she did for no identifiable reason we pointed to two compared we pointed to mr gardner and mr howard both of whom are sufficiently younger than miss conclusive i mean you're saying is you're much stronger argument the october surplus situation yes i believe that the after effects argument is stronger than the january project argument however i still believe that our generation surplus pretext argument sufficient us i mean i can go back to january you know there were seven employees who were her age or older that that were retained in the january surplus have i have a real problem saying somehow that she has been a deadly shell and that was a pretext but on october the question is when she's the only going the problem is that one of the things you need in october is she has to be qualified for the new position and it looks like there was you know a missed gaging of the qualifications by her for this new position once upon a time she had engineering skills but like a lot over the decade decade now and it looked like she was rated at the very bottom of those who were being rated and she by your own admission said she wasn't qualified the fact that one of the  points during those few months he said she wasn't qualified so what is your argument that shows that there was a targeting because of her age or her just abilities you could i can even add that  is she unfortunately she's rated at the very least qualified and she admits that this new job just it just is not working and document that sir plus rating no surplus assessment was made directly contrary to what a team he has represented in this case which again is this black and white stinks and the back black and white contradiction  simply saying i'm not qualified but it seems the you could go either way oh yes your honor our position is that the statements that mr ballard made in this e mail or says i'm not qualified are not suited it is not an admission that you does not meet the bare i can't do this job well there we do know we still presume the person to be competent to do the job to be more appropriately qualified to do the job well under the circumstances of this case yes your honor because the also asking for help waiting for medical and what a commendation did she ask for specifically it i know she made a request or there was a request made for her just that she needed a half again the amount of time to do particular tasks is not true all right what should we make of that well your honor number of requests that she made including the one that we just discussed she also at that at the outset every ten years the asked for more time in general and she also asked to be made releasable simply that she could apply for another position that request was denied for a period of about two and a because we believe there's ample evidence of a breakdown in the end interactive process on behalf of a team to the court and taylor said that that reviewing courts must assign blank or must look to assign blame for for a period of two weeks to discuss general performance deficiencies how are you going to get better that's step one and that's that's in the record step two is the coaching action plan which mr ruef put iran in step three is a performance improvement plan we've shown that mr rubin skip step one essentially and she went straight to the coaching action plan which we believe this is also evidence in favor of our supporting a pretext argument but there's no dispute and she admitted in fact skipping the st step of because of missed our noted improvement on the job and that as of june st two thousand and sixteen a month after she sent this e mail saying i'm not qualified or suited mr aruca tells miss ballard that she is doing fine in if an employee is surplused or declared surplus in given the meaning that we have here in eighty and t plan to reduce force how is that not affectively a bull's eye on the back of an employee which changes the terms and conditions of employment the employer may not hit the bull's eye and the employers to police days but then again the employee has been put into a particular class the surplus where there is now a risk if you will a possibility that the person will lose her job because that's exactly right your honor i mean in this case the i was really hoping you would challenge me and disagree with me on that point that when she's being placed on the surplus and when she's told that she will be terminated and should be terminated she's unable to find another job action because it's a change in the terms and conditions of employment but that's that's exactly right group even including lateral transfers within the company even including lateral transfers exactly around her and that's based on the the language of the in terms and conditions of employment is included it there is no statutory language in there that requires anything additional but supreme court has held in a number of cases when the term is not otherwise defined in the statute you apply the ordinary meaning and the ordinary meaning of terms and conditions clearly includes within it the transfer of job duties so in that  case you know that it's that is clearly falls within within the statute and that's you know it's the supreme court also said marital or this phrase terms conditions privileges an employment it's supposed to get at the entire spectrum of discriminatory treatment not just it never will be looking at economic or contractual different you and this was a point that a number of judges have come to recently including now just consistent with our regulations which were adopted pursuant to notice and comment at the direction congress and are therefore entitled to substantial deference under under sh i'm not sure if your honour's would like me to continue discussing that or if i should talk more about the idea of this future notice of terminations constituting that point action well since you only have a little more than a minute left it's not a published decision and therefore has no precedent for you but also because it attempts to import additional language into the statute that's just not there when it requires this that the position into which somebody is transferred be inferior in some objective way e just very briefly with respect to the notice of future term nation that is something that both ricks and watson old have an adverse employment action and wants and that was even when like this case there was a employees out of their own back yard whether it's on cots lenses could be in some cases not so good absolutely i mean that that that's why did transfers are included within this language in terms of conditions employment it's not just whether you're making the same amount of money i mean it is it's if an employee says that this is not something i want that this is discriminatory and it's changing my terms and conditions of employment that's a not to satisfy  could it also now let's flip it around but it works the other way that it will discourage bosses from trying to find lateral positions for their employees well no your honor if it's not discriminatory means changing transitions if the employee i mean certainly if the employee is offered a transfer and accept that there's not a problem heavily on a series of timeliness cases the fact that the supreme court in this court have held that someone needs to act within three hundred days required by the statute after they are given notice that they are losing their job does not translate into in all factual circumstances the conclusion that every time that happens an adverse action results and here panel suicide plan to reconsider his decision to reverse in chambers summary judgment was granted to the employer and the d c circuit affirmed summary judgment there because the plaintiff had not come form sufficient evidence to show that there was an adverse employment action it isn't well established under the mcdonnell douglas test that is a prong of the tast you have to show an adverse employment action and here we think jump ship got it right and no evidence in the record has me show that this lateral position that ms fall or moved into materially disadvantaged her in any way she chose it eighteen she offered two positions and she chose this of two of them so we don't think your honour's even need to address that question miss followers appeal she chose the role was i mean it may be for a couple reasons she didn't want to move to texas but you know for her doctors were in jersey and also her home was in jersey but perhaps in hindsight she should have chosen texas the point here is that you're putting it when you when you are taking that as i understand the e e o c position when you are taking somebody out of their job think of that as do that to be an adverse employment  you don't know what's going to happen and it is one you're not going to be in the job that you previously had so what's wrong with the simplicity of that argument nothing your honor i would say that means that there is potentially an adverse employment action and i'll give you some hypotheticals one of which is someone is designated and the next week one of their wait for the future to play out to find out whether she loses her job and in my hypothetical person never lost their job and my point here is again there is extensive law from this court and other courts that a plaint it can not be adverse when a person is placed into a pool notified of that that their job is effectively no longer secure that is to say that there is now a possibility that we can't quantify at this point but a possibility that they will lose that show up why is that not adverse ron i think that is potentially at person we have to wait for the facts to play out to find out whether that until or so your entire so your position is the adverse nature of any kind of employment action or decision is based upon the ultimate result it cannot be in the initial determination to place a person in this pool of surplus honor i think the question around the initial determination is whether it is motivated by a protected characteristic whether the result of that determination is adverse adversely impacts the person depends upon the facts and in again in my hypothetical if someone is called you are being surplused and the next day the company decides because someone died on the team they no longer had to eliminate that person's job your hon change in the conditions or terms of their employment unless it actually happens and those terms and conditions do change in the future the conversation in which someone is told this may happen in the future  conversation we submit is not a change in the terms and conditions of the employee's employment but you're on this we don't think you even need to get to this because the plaintiff concedes in her brief that she needs to show that terminations occurred under circumstances giving rise to an inference of discrimination and it simply did not and i'd like to address a few of what we think are genuine issue regarding the elimination of the seventeen positions in the in the in st surplus i did as you know didn't say that her job was that job was not actually even needed just she did not your honor ms dilip ruses testimony in that part of her deposition she was simply talking about how she was going to be reallocating resources among the remaining members of the team the evidence that we put forth in the record shows undeniably  seventeen jobs were eliminated and ms dela cruz is testimony about how they were going to do the work going forward and reallocating responsibilities does not contradict that it certainly doesn't create any genuine issue as to that your hon similarly miss ms eastwood's testimony about the raids this fall or contends that simply because three years later she couldn't remember the specific reasons justifying her contemporaneously record ratings of her team that that creates a foot in issue in fact and we submit it does not because if you look at that testimony you can see that whenever she was asked why she didn't know she said those kinds of specifics is not create a genuine issue of fact if you look at this these once testimony she was being asked three years later the reasons were for particular ratings on different categories for many people  miss fall or argues that she was somehow targeted now first of all there's nothing in the record whatsoever to suggest that she was targeted if you will because of any protective characteristics st the surplus guidelines in the record appendix page eight hundred and twenty two dollars in the surplus guidelines under the heading determine scope of initiative the following question is posed will the effort target specific levels titles functions locations or other segments of the organizations so the use of that word should not suggest any inference of discrimination nd that that leadership in the organization was evalu m work was minimal work there wasn't much of that it was declining and therefore it was something they could get rid of and miss follower was the one that was doing that and so that does shouted from the rooftops to her boss her boss's boss her boss's boss his boss from the day after she started in this job that she didn't want the job and that she couldn't do the job finally it sharp stepped it is undeniable and the ratings that we submitted that supported the summary judgment motion are attributed to miserable she was unclear and in her deposition testimony as to what they were whether they were mid year or annual and that's what she briefly talk about his fall of performance as the senior systems engineer she refused to do much of them were she wouldn't do halo she only did certain types of war the evidence undeniably shows that testimony i believe she said it was probably five to ten hours a week of work have to decant your honor i don't think the testimony is specific to that timeframe but it was that she was doing about five to ten hours worth of work and that was the estimate of about how much of that work actually exist significant delays as of august th nearly three months after ms follower was st told someone suggested to her to go to the integrated disability service center with your with your health issues three months later one of her doctor said he had nothing to offer terms of specifics on accommodation and it was only later that her other doctor said give her one dollar and a half the amount of time to do the work and  we can't lower expectations so can you give us more they asked for more information from they came back with nothing and again it's undisputed that this fall or was given plenty of time to do her work they gave her less for so this case is very similar your honour's i would say to the sessoms case sessoms vs trust easy or c of pennsylvania they are the plaintiff suffered mental and physical disability she had performance issues she attributed those to  disabilities including memory loss like this fall or this s and supervisor was even less was less sympathetic than this fall or supervisor she even said is that decision step shows that m  action the supreme court in rick's which was the case from the rd circuit said that telling somebody that they were going to be terminated within remain beyond the particular date only if you were successful in obtaining another position the statute limitations began when you got the notice it would seem that you if we follow what you're suggesting under rex and watson you could have somebody not have a substantive action until after the statute of limitations has expired and then why don't we just extend what about the consequences of following your path in light of rick's and watson that the statute of limitations begins the day you're given the notice that you could potentially be terminated but your honor i think that we're not asking this court to change that will you were told you were being fired the clock starts running on your three hundred dollars a side we don't we don't dispute that does it present a problematic circumstance for someone who's told you're going to be terminated three hundred and ten days from now whether they file a charge i think under those facts they have to talk to their lawyer i would them to file a charge given hicks going to rex but i don't think this case the facts in this case present your hoppers with the opportunity to wrestle with this specific issue because her look for a job she found two jobs and she picked one of them and her pay didn't change her benefits didn't change and so and she didn't present evidence in the record that there was any advice consequence to her by taking this job and we submit that on summary judgment it is her burden to do that so what you're suggesting is that in this type of situation  sticky situation we just wait till there's somebody that goes to three hundred and ten dollars days and we deal with it but what's the problem with doing with it now if your honour's choose to have dressed the question there is nothing wrong with yours addressing it now i just don't i just think the judgeships decision was supported by this record i will at candidly agree this is an interesting academic question that is more starkly presented in the transfer refusal to transfer context but that's similar to this and the courts that have wrestled with that including the d incident both someone's job and at least the probability of someone's retaining that job over the longer term but academic practical or both the panel will d wrestle with it and we've extended it both clarity of her testimony but the more important point is that this court cannot come to the determination that mr ruef made a mistake based upon the clarity of her testimony in her saying i didn't do th jury question the jury should be able to decide whether or not she did make a mistake and actually testified at trial that now you know what the u s or d d actually the surplus ratings were then she's going to be impeached by her own sworn testimony in which she a number of mistakes in the testimony she did not correct this test very briefly on the issue of targeting i direct your honors attention to the to the testimony of thirty six with the selection a preliminary identification of employed by a late the guidelines not only the guidelines but also the code of conduct and i also direct your honor's attention to the testimony of the other human resources business partner in this case a woman named who is responsible for the h r functions related to the nd star plus she was so taken aback by this issue about targeting that she testified she would have slapped mr tyrol and had she known that he was pre selecting employees it is  disturbing procedural violation that they cannot get around that summary to give it if we hold that ms fowler was not qualified for her new position doesn't the bar for failure to accommodate claims matter well it depends on what aspect of the qualification analysis your honor is referring to under mcdonnell douglas because under the idea it is a two part test she must ooc who must show object of qualification and then she must show that she was otherwise qualified to form the essential functions of the job with or without accommodation at the time of challenge adverse employment action that's the nd and the nd component of that analysis acquires work to analyze the failure to accommodate a claim because the panel will take the matter under advisement and i will ask mr kane to adjourn the proceedings