it's always dangerous you know people still the water at the podium but your discretion and your honor i've already reserved formants for bottle justices i'd like to start my oral argument just by telling you why i took over this case when it was already dismissed for failure to prosecute work for defendant appellee for twenty six years in those twenty six years she was never ever not once disciplined for poor performance or for any other reason until after she filed a racial discrimination job the question that immediately arose in my mind when i heard those facts was does a career employee with at that point twenty five years of service become a bad or ineffective employee just because she files a race discrimination towards or perhaps is the employer trying to cover up something has her charge revealed some truth that they don't want anyone to know i submit to you that it is the latter and i'm seeking reversal of the lower court's  duffing henry was the subject of race discrimination she worked her way up through this organization and according to her own supervisor hit a ceiling all she wanted and all this case was about was a chance to participate in the training that would have allowed her to take a test to be promoted she wasn't we're not she didn't follow charge saying they didn't promote me she saying they didn't even give me the opportunity to be promoted the lower court got one thing right in this case and that is this and two thousand and nine the lower court found that we established a prime a fashion case of race discrimination what the lower court got wrong was that they said we did not submit sufficient evidence to prove pretext now the way the lower notes of the two thousand and nine claim you're talking about yes and i was going to luminance that a little bit wraps it's not necessary the lower court  what they did was they looked at each year separately because each failure to allow her to participate in the training was a distinct event and pursuant to the defendant a police policy the training was offered two times a year generally speaking in february in august so february in august of two thousand and nine february of two thousand and ten are all in play so the court looked at two thousand and nine for and said we did statistician evidence of pretext i think the lower court was looking for a smoking gun unfortunately this is a circumstantial case there are no blatant use of the n word here  no racist commentary it's a circumstantial case but this is a perfect case for a jury to sort out the facts defendant's so called legitimate nondiscriminatory reason for denying my client the opportunity to do a participate in the training isn't sufficient to explain why they didn't allow or what was it for two thousand and nine again well i never really got a clear answer on that your honor but basically it was she didn't feel she was ready you may hear my colleague say something about surveys that were circulated that said she wasn't ready surveys that were completed by coworkers no such surveys were circulated in at this point it would be in two thousand and eight or two thousand and nine no such surveys were circulated the supervisor did not identify her as a but i'm trying to make sure i understand your question before i go to that went to moni how do what happens well you need a certain amount of experience and you have to perform in a qualified manner in your job right away that happens they know that is by their rating system whether you or whether you're exceeding expectations meeting your performance standard or not meeting men and as for that for the year leading up to this she performed satisfactory all over with her evaluation satisfied the objective criteria and she had been there long enough it satisf of criteria and then the next thing that was supposed to happen is that she would be recommended and then she go through the training and there would be evaluations but she never got to that point and she was never recommended that's correct for two thousand and eight for the year two thousand and eight she received an eighty on her performance evaluation to see two supervisors and their boss all testified that that meant she was fully functioning in her role that is one of the initial qualifications for the next roll up the consumer relations rep too she satisfied that initial qualification she was not nominated and thus she didn't go through the training as you said i'd like to point out that at this point and one of the things unfortunately that you see in the appellee brief is that they conflate the timeline because it suits their purposes but at this point two thousand and eight and then early two thousand and nine no discipline no poor performance no performance improvement plans none of that so she was on equal footing with a similarly situated individuals  caucasian employees who were nominated and allowed to go through the training and she files the charge with the ohio civil rights commission in may of two thousand and ten right ok go ahead and i think the is absolutely imperative in this case may two thousand and ten she filed her charge and i'm going to move to the retaliation claim not because the other ones aren't important but because time is of the essence with the retaliation claim may two thousand and ten she files a charge june two thousand and ten she receives for the first time an unprecedented not achieving on a call quality score july she complains to the employee relations department and the corporate department december two thousand and ten her boss contacts the employee relations department in chicago about putting her on a performance improvement plan now i'm not going to say that there there was one incident of a disciplinary action in november october november two thousand and ten she has admitted that it was a legitimate mistake for which she was disciplined that was giving a password somebody in phone so that's december of two thousand that correct she how much of what you just said proceeded that i mean most of it did any of it not proceed and i put it that way about the bad you know the first time she doesn't get it in a rating i mean that was before the event where she gives a password and properly that's correct so to drill it down to even more detailed facts which i know you have plenty of those to look at for the first five months of two thousand and ten before the employee relations department was aware of her charge should they give monthly call quality scores w center she gets an a they don't score for january she gets a for february march april may and then june after they find out about the charge she gets an an a for the first time ever i i i would like to say yes to that i can't swear to that so i won't so that are the record shows yeah are you relying solely on the temporal proximity for as evidence of causation no i'm not although that's strong evidence and my view it's very strong evidence especially some of the stuff that happened afterwards but there are comments made by employees that are pretty high up in the organization about their efforts to well miss him in recent supervisors boss's boss said that if she were a new employee he'd be looking to fire her that's in the nose of the employee relations department is that after the password incident that was after the password incident but was also in may june of two thousand and eleven so it was well past that in but i don't really understand how that you can say that's evidence that they're trying to fire her for the specific reason that she filed the charge with the ohio civil rights commission it's evidence that they were paying special and close attention to her and they continued to space pay special and close attention to my client more than any other employee so as i said from the outset this is a circumstantial case but when you've got the employee relations senior manager saying we can tell the story about why she wasn't promoted but not the story about why she isn't in a i feel that strong evidence when they find out that there's a probable cause determination from the ohio civil rights commission on april twenty eighth two thousand and eleven and on april twenty ninth two thousand and eleven they're talking about what their formal actions going to be against that the first time in june of two thousand and ten where she rated as a ph with respect to her call quality and one thing that wasn't mentioned to the court is that in june two thousand and ten it was a new system put in place a system that is undisputed and henry had a difficult time employing the use this just to assist and answer you have it whether you know ok so they have a new system and by coincidence this is a month after she filed her charge if we're talking about causation here why is all the sudden you know the the roof falling in on her and abbott labs why isn't that classically the sort of thing a jury should sort out well i think the reason is simple and i'll stick with the retaliation claim and then i'll move to that the discrimination claims here miss henry had a terrible year in two thousand and ten she'd a terrible year starting with when she filed her charges that means exactly but it's undisputed what do you understand  certainly do but what's undisputed is that during two thousand and ten and we had talked about the situation where she gave out her internal password to a caller that allowed in the december of two thousand and ten exactly right also during that same year which is after she filed a charge this is her inference but you know if we're here asking whether it's a matter of law there is no causation i i'm hard pressed to see why this isn't a jury question but you know if you're if you're getting like chased for five months that work then maybe she starts to get a little rattled after all that you know why just let a jury sort that out the court didn't even get to causation the reason it didn't get to causation is because it was a material adverse action that she suffered she wasn't terminated despite all of these actions that never made an effort to turn the now you're talking about constructive discharge don't allow talking about the material adverse action elements of the retaliation claim in order to be able to use the standard no actually use the correct suffered was a p a on her two thousand and ten performance evaluation again that evaluation rated performance in two thousand and ten and she admits it was a terrible year it was a year she performed worse than in any other year that's her own words what  what else is she alleging as an adverse action well i was subjected to increased scrutiny but what's the increased scrutiny well i had more sit with that i used to sit with is when someone comes and sits next to her and monitors a performance well how how more how much more often was but it happened a little more frequently that it did in the past her own testimony so if they lower her rating for the first you know for the first time in her tenure in this position  if they lower let's say a jury finds that they gave her a worse score in june of two thousand and ten than ever before because it was in retaliation for five filing that charge isn't lowering somebody is evaluation an adverse employment action but some focus on that sure i would argue that it is and it certainly isn't in this case is if you have a case that would say knocking somebod evaluations down is not an adverse employment action was a case cited in my brief and i apologize for not knowing enough the time here for you there is such you think that's the law i think it's you can you know knock somebody down for you doing outstanding outstanding outstanding on a satisfactory and that's in response to you know some legitimate complaint and that's not adverse and the for retaliation claim we asked what was that is that your view of the law that's my not saying it's not that person x and that saying we had a reason for it that's not what you were being asked the question is whether a bad performance review is in that verse that says i think you're saying it is that's right but the reason why i'm saying it is because the law says it so it's not an adverse action and i'm saying it at least the last cited in our brief does and i'm also saying it's not in this case regardless because it was based on objective criteria that she admits to hating  executive so in that regard at the court was exactly right saying that she didn't wait a minute whether it's adverse is different from whether you had a reason you could fire her for a good reason it's an adverse action but it doesn't give rise to li so you're there you're conflating two things when you say well we had a good reason i was doing all tempting to answer to and one but i'm clear on the believe it was an adverse action and in this case i also happen to believe that it was given for a perfectly good reason and one that had nothing to do with race so with but if i pick and we want to discrimination claims just because it is a failure to promote stuff exactly that's what i want to talk to yes you're one of the one of the big issues that wasn't mentioned to this court at all was that miss marvin identified ms henry for promotion in two thousand and four and again in two thousand and six before she files charge their whole theory is things go south after she files john there's no there's there's no allegation that these failure from failure to votes were retaliation for any identified or missed this henry didn't get by the first step what's the first step well the supervisor in this case marvin hands out surveys senior representatives and coordinators who interact with was heading on up on a regular basis so t get their input on whether or not they think she can handle the type of calls the complex calls that if they are to does enough of those surveys were negative in both of those years with years of two thousand forty thousand six that mrs henry didn't move on  process now miss martin who views and witnesses misunderstood formants on a daily and a regular basis to determine that you know between two thousand and six and two thousand i didn't see enough of improvement in the areas they identified to identify her in two thousand  question jer i don't see in this record thread where you stated a legitimate reason for the action failure to promote for two thousand and four two thousand and ten and use it seems like you jump to saying well they haven't shown pretext but you have to give a pretext for what what is the reason that is purportedly pretextual and i don't see it for the reasons is why you swear where in the record is miss marvin thought she had not progressed now that's the that's exactly right is that i mean i'll keep i will have to go back and look because i mean it just doesn't really seem to be there but that's not that's one side of the story the other side of the story is that there's testimony all over the place that you have to be you have to have a certain amount of experience which other people didn't have and were promoted anyway years prior she was not put forward the way everybody else who meets those two criteria are put forward well i think first of all what you just stated is and the record there isn't anything in the record candidate is a reality that she met the objective criteria and she didn't put her name forward she couldn't put her name forward and maybe there would have been negative reviews but she didn't and again that's part of the promotional process the the supervisor just because someone meet these criteria set doesn't mean that the supervisor every time puts up the individual for promotion there's nothing in the record suggest that they put who they believe is a  promoting customer service rep to senior representatives promoting them to quality coordinators what a brownie who reported to miss martin again there's nothing in the record to tie any of this to race and that's why the court didn't find pretext there's nothing there because other african americans were treated find it succeeding it was miss henry's performance that was the problem here and that's a nice for the jury i think you guys got it right can you give us a cite to the record for promotion in two thousand and two thousand and ten is there deposition page or something that that you would point to and say that's that's our evidence that she had a legitimate reason yet i mean there is depth there in the briefing there is citations to a specific record testimony in this marvin actually in your priest he was ready to believe so you because i mean frankly you know i mean we have cases where somebody comes in and they make a characterization about deposition testimony a minute if it's correct there's a genuine issue and they get to go to trial right here you know you're making a characterization for the opposite purpose and i'm just frankly kind of holding you to the same like you know what's to pay you know usually what i'm looking for is a page number in the record not sort of my recollection of what somebody said and i'm just wondering if you're able to provide us with that pinpoint citation to the record which would support i guess i'd refer to page twenty seven of our brief there's this repeated record cites there ok it's twenty seven says ms henry cannot establish the rationale for not supervisor yet rich what a difference if that's that seems like a wrong but in the first block this court is held right that mitchell still the standard but there may be circumstances when an employee doesn't have to show the same supervisor i would strongly argue that this is the case for it here miss marvin is the individual who didn't identify her for promotion right we need to look at what mr muhammad's marvin's treated african americans as compared to how she treated whites and in the lower court the entire argument with respect to the two thousand disciplinary situations isn't that the laws it is i don't think it i don't think it's limited edition i think you take a look at the case and determine whether or not that factor needs to be applied and in this case i think it's the right standard to apply there's also some argument next sixteen seconds left regarding three additional people who miss henry argues should be considered signal situate in the district court erred when it didn't consider them simply situated however there's nothing in the argument for the district court other than just these three people's with regard to the same supervisor argument i think the case was pretty clear that it doesn't apply in every case but i'd also like to point out that when submitting a position statement to the ohio civil rights commission the defendant appellee used an employee who worked for julie matt a bitch to compare to my client not from her own supervisor when they attempted to argue that she hadn't been discriminated ultimate decision maker because specifically in march of two thousand and ten ms henry went to her and asked her basically to overrule what her manager had not done after denominator and she according to marvin and to  backed her supervisor one hundred percent best testimony regarding the question you are asking about why she wasn't chosen sided extensively in my brief but i would point to marvin de same performance rating had no discipline and basically what it boils down to year after year is well delphine's just not ready or she slips back or she doesn't sustain her performance how long do you have to sustain your performance for some people apparently white people you only have to sustain your performance for a period of months but for delfin henry if she couldn't sustain a performance for ten years it wasn't enough in june two thousand and ten my colleague mentioned the fact that there was a new system put in place of sales force dot com i would also point to the fact that for the remainder of two thousand and ten there were several months after that system was put in place that they didn't take any call quality scores because of that system but in june two thousand and ten they did well what what period did they not take qualit scores your applications everybody's having a hard time that's my implication exactly and that's exactly what it says in the records of the call quality scores but i apologize i don't have every single document from  there they did they did score for june they i think they skipped scoring for like all july august and september and basically what it said on the sheets was because the sales for and for the two thousand and ten performance evaluation my client received a p a partially achieving for her call evaluations even though her average score was an eighty so again more evidence more circumstantial evidence that she was the subject of increased scrutiny and material adverse action she was the subject of increased documentation that was going from her supervisors desk up to the corporate office in chicago there was one document where they were tracking her hour  she received a letter of expectation which is what ultimately convinced her that she was going to be fired the letter of expectation told her that she had sixty days to improve the call quality scores used to