it's number one six six four seven five linda king vs out ozone hours l l c arguments not to exceed fifteen minutes per side mr taylor for the ability to perform her job and a competent fashion and there was no questions asked with regard to her and abilities and january two thousand and thirteen a gentleman by the name of chris brown took over and r honor and the mere fact that she is an at will employee does not give the employer the ability to discriminate and it is our position that in this particular instance that's exactly what happened the decision maker in this case chris brown came in and in six months of his taking over their position determined that he would not that he was going to reorganize and his decision to make reorganization within the risk management hubbard had been placed on a pip she determined that at that point she would she felt she was targeted she felt that she was going to be let go and so she voluntarily stepped down from her position to take a lower position and after doing so resign before she felt that she would be terminated in france's littlejohn whose affidavit had also been presented in a case she had never been counseled with regard to any disciplinary actions  in fact had not been informed she was having an accountable pharmacy issues at all until after he took over in provide her with the pill she decided to take early retirement instead of suffering any further disciplinary actions with regard for in september of two thousand and thirteen now the defendant in this case would assert that mr mosley and ms king or not similarly situated and that is removed from her and put elsewhere he wasn't even an employee at that point was he he was not young but position had been posted and he ultimately replaced miss king in that position now the defend says that he had a higher order or different responsibilities but as i submitted as part of my exhibits to my statement in response to the statement of material facts was that mr mosley response bills are identical but that they were largely the same and in this instance this exactly what we had mr mostly just a pretext situation where the revamping of the department believe she's also shown that been able to demonstrate their pretense exists in this case again largely you can't look at this case without looking at the decision making unfortunately  interesting that the decision maker in this case mr brown chose an image in his deposition that when he did this reorganization it did not impact anyone but black females over the age of forty and so absolutely win this case but we're saying that there are genuine issues of material fact that exist as to whether or not there was racial animus there was age discrimination is case and the jury should have the opportunity to hear this case appeal the district court guess concluded that you that your client abandoned the sex discrimination claim in the can and the retaliation claim and  a prior supervisor and her treatment that she had to endure and how unfair that treatment was in a she continued to go up the chain of command with regard to the complaints on that supervisor and ultimately  she got to someone and say you know i'm going to have to seek legal action if nothing is done about this supervisor and she was the supervisor alternately le sink who was responsible for the reorganization that ultimately led to her losing her job and so that was pointed out in our brief and we did not abandon the retaliation claim and it is the plaintiff's position that the district court err in abandon her retaliation claim second issue is whether she made a prime aphasia case of either age or race discrimination under the mcdonnell douglas burden shifting standard that the court knows so well there's also a third issue which the court could take up of it's inclined it doesn't have to but that was submitted not as zone's brief summary judgment and before this court with respect to pretext there's just been no showing whatsoever of pretext in the way that the law actually requires what would you are a fair number of slip and fall claims and those sorts of things also auto zone is part of its efforts to sell the commercial customers like auto shops in what have you has thousands of vehicles in its fleets and also operates a vehicle me a tractor trailers to deliver parts from distribution centers to retail stores so as you might imagine with thousands of drivers around the country driving lottos own vehicles they're either accidents were auto zone drivers or a fault or were other drivers or fault and part of the mean the insurance and loss management component with respect to auto zones operations has never changed and likely never will unless insurance changes in some way that i can't conceive of what happened was with the background facts that your honour's need to know is that the prior supervisor about which miss king we assume for the purposes of summary judgment we didn't actually have any evidence other than her say so but we said that's enough we said we said district court assuming that she complained about this former supervisor a woman named who by all accounts was a pretty terrible supervisor haskel left the company has investigated placed excuse me received them disciplined and left the company in april of two thousand and twelve well as you can imagine a management style like that was terrible for morale and was terrible for the numbers in the department and this this may answer a question judge mary which is that the risk management department its overall function i mean if you had to sum it up in one sentence is to lower the total cost of risk to autozone and one of the ways you do that is by processing claims more quickly resolving the more efficiently resolving them for less money so when brown came on board and brown of course was an internal promotion he had worked he has a background in risk  management but in accounting analytics and has an m b a so he was an internal promotion he took the job of risk management manager in january of two thousand and thirteen now in that time period between haskell's departure and brown getting the job the interim head of the department was the person identified by mr taylor steve think so when brown was brought on board he inherited a department that had awful morale was frankly sorry shape correct so he inherited department was in bad shape in part of his mission and part of the reason he was brought on was to bring his experience with analytics in other methods of promoting efficiency to bear on that department because has had been abusing employees she had been pushing employees in ways to close claims efficiently i mean some of this is outside of the record but if you go back and look at these things deposition testimony which is in the record in brown's deposition testimony it's very clear that the department is in bad shape when he came on board so as part of part of him being brought on board he wanted to develop a plan to get the department into better shape and part of getting the department to better shape was doing more data analysis the data analysis is key for the department because leisure measuring the claim history the claim life the amount you're paying out of those claims you have no way of knowing whether you're bringing down the total cost of arista autozone that it's a trick question so in any event  well miss king really had no part in that overall mission in the sense that her job was virtually entirely clear at all so she worked underneath an employee name sheree mccleary so miss king's job about thirty five to forty percent of her job was compiling a single report which is it is a spreadsheet called the carb report card but short for a corporate accident review board that that sounds as boring as that is what happens is each week autozone has a group of managers who meet and they go over the previous week's accidents involving auto zone's vehicles so about thirty five to forty percent of miss king's job in her own estimation with the preparation of this report and the way she prepared that report which  among other things will she go request motor vehicle records for the drivers who are involved these accidents she would copy and paste that information into a spreadsheet and basically shoots she would spend about two days a week compiling all this information manually into a spreadsheet and then offering that up at the card report meeting that was held be clean and still weekly and the rest of her job was basically a hodgepodge of clerical stuff she printed key chains and decal she printed fedex labels she answered the telephone in the other thing that the court may have gleaned from the briefs although perhaps not because i didn't make the point terribly clearly there's another employee named sharon berry whose title who she still with autism she was with autism during this time period as well she's african american she's over forty  obviously a woman heard her title as risk management coordinator and there was significant overlap between between the clerical tasks that miss berry did as part of her job and miss king did as part of her job so the reasons why this king's position in particular w on board in misty dosey was tasked with creating these these queries and these reports to analyze the cost of risk but she was overwhelmed that she wanted help which was what prompted chris brown and others to create the position of associate risk analyst to bring someone in who could perform those analytical functions to support the overall mission of autism through its management department and what it was that the position that max mosley filled yes judge mexico is like that that job entails that job so mr taylor correct max mosley eventually took over the carport it took miss king two days to prepare it according to her own testimony in a deposition it takes him two hours he does about thirty other separate reports that involve various analytics and i won't bore the court with all of them but one of the main with them something called the last development triangle and what that does is that excuse me your honor what that does is that tracks the value of a loss over time in other reports that it generates and  uses or in that sort of same general major key chains he does not do any of those kinds of clerical things your honor the answer that question can be best summed up by the fact that when miss king's position was eliminated her immediate superior supervisor named the woman insurer mcclary who's over forty she took over most of miss king's job responsibilities in his retain most of those responsibilities except for the carport which mr mosley now prepares so that's why those are i mean i've gone through all the facts but those are the reasons why miss king should couldn't show that she was replaced within the way that the law in this area requires she could also she could have tried to have shown that someone who who had a job like her through a similar situated who was not in those protected classes asian race because the retail claim the sex discrimination claims are gone and i won't talk about those because those are fully addressed in our appellate brief she could have offered up other compared or evidence but she didn't the only potential compared or she offered up was mostly but of course there are several problems with that one is mosley's not a are not a replacement so he's not suddenly scituate in the sense that he's doing substantively different work he's doing in a little work she did clerical work zone the second reason why is because when her position was eliminated he hadn't even started working for auto zone so plaintiff could have gone back within her department and look for an employee who had a position similar to hers but who was not let go but it had she done so there's a mention before the employee whose work is most similar to plaintiffs is also an african american woman of over forty name sharon berry who does much of the same clerical tasks as a similar title her title is risk management coordinator so that compared her evidence likely wouldn't have helped plan and then if your orders have no more questions i'll just say there's really no evidence of pretext if you go through the briefs or excuse me if you go through the appellant's brief you'll see that much of that i guess so called pretext evidence although we don't even have to reach that question given the posture of this case most of that pretext evidences is i guess aimed at attacking the credentials of chris brown who was the risk management manager who took over and created the plan eliminated miss king's position and then other parts of it are i suppose devoted to attacking the credentials of max mosley the fellow who was brought in as the associate risk analyst but of course those aren't profitable ways of showing pretext to show pretext you've got to show that autozone stated reasons are insincere phony not that you disagree with the credential of the decision maker or that autozone had a mistaken view of miss king's capabilities or what have you and if that's if that's a that's all that i have if that a finding of abandonments reviewed for abuse of discretion so mr taylor to prevail on that would have to show that the district court made a very unreasonable miss dake and all quote from so i'll say to answer your question judge clay that autozone in our opening causal connection between that protected activity in the subsequent adverse action so here in our opening brief summary judgment we identified two real problems with that any showing of a causal connection by plaintiff instead you could make a causal showing of the causal connection those problems are this first the supervisor about which we assume that she had complained carmen haskell who i by all accounts was a terrible supervisor i'm not minimizing that carmen haskell left the company for good in april two thousand and twelve chris brown who had no loyalty to haskell and in fact came from a different department and who created this organ reorganization plan for the department he didn't take over until january of thirteen didn't create the plan until june of thirteen and in fact play his position was eliminated until september of thirteen so she has a real timing problem and he said that in opening brief the second problem is that her theory of retaliation was just it remains highly implausible in so far as we offered record evidence of summary judgment regarding auto zone's investigation in two thousand and eleven of  management style if you call it that mismanagement style perhaps and in that record evidence that we offered we offered up statements from employees who had been interviewed these employees were all within the risk management department they were interviewed by autism's h r folks regarding haskell and as it turns out plaintiff name is nowhere on and of course we assume that a way for summary judgment purposes but there are a number of employees who aren't protected classes who were on record complaining and nothing of course happened to them which winters her retaliation claim pretty well implausible and to sum up and i know it's a long answer here's the only paragraph in or opposition brief summary judgment that addresses retaliation and i'll quote it because it's very short plaintiff complained of the chain of command about the treatment she was she testified that she complained to steve using who did nothing finally she went to legal to let them know that they did not do something about the treatment she was experiencing perhaps but she would have to file a legal action steve you think was involved in decision to eliminate ms king's position certainly her superiors were  testified that after haskell's terminations she noticed significant tension in the department an apparent disdain from perth and steve using in quote so as you'll see in that response it doesn't respond at all to the timing argument and it doesn't respond at all the plausibility argument and i don't think the district court abuse discretion by deeming it abandoned and if that's all the court has it's all i have thank you thank you counsel to tailor a bottle motivations chris brown's motivation seems fairly obvious in this case he had the opportunity to come in and reorganize this department and in doing so i don't believe it was incidental that he decided that he would  three african american females over the age of forty he did not have take any other actions that affected any other that in any one white within the department anyone below the age of forty as relates to max mosley he most certainly compared to were where they may not have given him the title of claims coordinator his primary function when he came in and if you look at his evaluation what it pointed out in talked about was his handling of the carport miss king testimony in this case is that she had been cut consistently streamline in the process as relates to the carport and so where he may have had have it down to two hours now she had got it down to five hours before she left and was continuing to come up with means and methods to do so when he described in detail his responsibilities max mosley with regard to when he took over and for the most part he was trying with just handling basic lines including stuff in the system about basic lang's coming to understand the basic claim process things that miss king had been doing for eighteen years now when they talk about his responsibilities a year later with regard to training he received there is nothing to indicate that miss king could not have done the same thing if given the opportunity but in this case chris brown did not give her the opportunity in this case chris brown downsized her and was in the process of eliminating two other black females positions and so most certainly again the plaintiffs point out that i may win or i may lose before a jury but that issues exist in this case the