two key errors that they just report made first in finding that there was no protected activity by ms britt considering this court's ruling in solomon vs girls act was brit's religious accommodation request crew clearly performance based firing in fact there is a considerable amount of time inhabitants to indicate that there was no intention whatsoever on fannie mae's part to do anything of the  t also we have the most of the evidence which i think prominent among those pieces are the fact that the two firings were connected in fannie mae's documentation meeting took notes wrote memos about how they were going to fire both of these people that they were looking for reasons to justify that they were also numerous impeachments on key items  and amended performance appraisal after the fact from his ranch after she'd been given her forms of praise an invention of new deficiencies alleged against the employees for the firing with regard to the mae's asserting that the administrative charge and the lawsuit allegations need to be virtually identical however d c co to dish fourteen of three point sixteen states that were administrative complaint has been withdrawn a suit maybe quote as if no complaint had been filed and the council could have just drafted that weary ministry of complaints have been withdrawn the statute of limitations told imitation is tol the period during which the administrative complaint was undergo a charm view but it did neither such thing it went further in saying that a complete lawsuit could be filed on a withdrawn always sharp complaint as if no complaint had been filed certainly even if the cork were to conclude that there were instances it could be instances in which the administrative complaint and the court complaint were two disparate from each other this wouldn't be that sort of a case because here that the conduct was all alleged in both instances the only issue which is with the characterization of the conduct and  in both instances the conduct was characterized as retaliation which is forbidden under the statute the only issue to fannie mae's raising there is that in one instance the conduct was being characterized as retaliatory based on race complaint as opposed to in the lawsuit tally torrie based on a retaliation playing our religion really displease me why why is that enough of a distinction because it's not like it's not like it was just and then one was race and one was a religion they were talking about something different right so there it was both developed within the characterization of retaliation potentially but one has to do with retaliation for some assertion of race discrimination claim another has to do with retaliation close they would need to be and i would submit that in this case they were close enough it's important to note that though there is some of the sanction that can be drawn there the religious  issue does come up it comes up the series of steps of one has to look at several different pieces of evidence to understand that it's being alleged initially but mr rush discuss was subject to cross examination if there's any question about whether it was accurate that could have been vetted there so i mean there's a distinction but i don't think that the distinction is sufficiently significant that it should try to be playing the land to the statute or the fact that if one looks at the at the various steps that happened here one sees that that the issue was being vetted in particular in particular superiors about where she was coming and going and that was a new report is that she found to be retaliatory in response to her request religious accommodation which was discussed at the time and then protected activity first of all she under the statute if she is being that they've actually been taken against her for having aided or encouraged any other person in the exercise of their rights then she is protected that's precisely what ms roche did and what ms wilson did in retaliating against her and the key evidence there of that violation is wilson's admission by impeachment prior blunder the morning may please the court this quarter should not reverse judge sullivan's decision below because the plaintiffs can't dispute that they were on notice of significant performance issues that led to their terminations well before the time of their alleged protected conduct so with regard to mr rush she was given a variety of discipline over the years any question about the claims against rush which is what's the jurisdictional basis for that that's subsequently been a verse by the supreme court but well i think both sides in agreement that there is still jurisdiction do the nine hundred eighty one claim ok with regard to mr she over a period of five months before there was any alleged protected conduct she was given verbal counseling regarding her serial violations of fannie mae's attendance policy she was given e mail counseling regarding her violations of the attendance policy she was given a formal memorandum of concern that was placed in her file and she was given an off track in her mid year review all of that were directly related to her attendance and timeliness issues and all of that occurred before the supposed protected the same thing is true with mr britt we know that mr barrett was aware of her significant performance concerns before the supposed protective conduct and we know that because she told us if you look at the memorandum that she provided to her managers at her media review she talks about the fact that she was unable to meet their expectations and she describes the fact that she felt the expectations that they had of her were unfair the same is true with the conversation that she had with her previous manager miss trask on the day before her media view that conversation which was memorialized by mr trask in a contemporaneous e mail talks about the fact that mrs britt didn't care according to her what happened during her mid year review because she felt like she was going to be judged unfairly she talked about the fact that none of the work product that she produced was good enough for her management team and she talked about the fact that she understood that she was not meeting her manager expectations as such on the mcdonnell douglas hess fannie mae has articulated a non retaliatory basis for the terminations so the burden shifts to the plaintiffs to be able to show that they engaged in protective conduct that the asserted reasons by fannie mae were pretextual and under the supreme court's holding in mass or they must prove that that the that the pretextual basis was the but for cause of the terminations here and they can do neither of those there is nothing in it that talks about discrimination on the basis of religion or ramadan or her quest to it to change her powers the entire document relates to the performance concerns that had been articulated to her by her management and in fact mr rush testified under oath that the document was intended to be a defense of misprints performance and that the parties had been working on that document for months before the supposed protective conduct occurred the same thing is true about the conversation with brit pad with mr trask the contents of that conversation was a defense of brit's performance the first fifteen items in that in the summ the plaintiffs have not shown a shred of evidence to indicate that they fix the problems that had been identified to them prior to the supposed protect the condo so mr rush had been coming in late to conduct of the plaintiffs cannot point to a single disputed fact to indicate that the preexisting problems had been beds and therefore they can't show that the terminations were pretext the fact is miss wilson didn't have any qualms with mrs brits west to change her hours for ramadan in fact the undisputed facts showed the contrary is true when britt asked miss wilson to change  hours brit testified that wilson's immediate response was that would be no problem and then when wilson learned that brit needed to go through fannie mae's reasonable accommodation request process the  was reach out on her own initiative to her h r business partner misgave there and babies reasonable accommodations coordinator and asked that she have the ability as using her managerial discretion to change  its hours even though the accommodation had been turned down by h r and misgivings his response was i don't think you should change your hours because of the creed system performance concerns and because of an attendance necessary to change her hours and miss gave her her business part her h r representative told her if you are going to ask her to change her hours you should make sure you know when she's coming in and when she's leaving for the day because she's going to be arriving well tory gesture or because she was angry about her requests for religious accommodation the check in was based upon the suggestion of her h r representative that if she was going to allow her to come in significantly earlier than wilson arrived she should know when she was arriving in when she was leaving the fact is wilson wasn't concerned about the accommodation request wilson was concerned about brit's serious performance deficiencies and the reason is that these performance deficiencies went to the heart of the job that brit was doing wilson was put in place she has an auditing background she was put in place because her management team wanted to implement a r compliance background and the tasks that are undisputed that miss britt was so significantly deficient at that they needed to be taken away from her and given to other people on the team these tasks were not extra about the competition requests but about the performance deficiencies and with regard to mr rush her claim was untimely the claim that she filed with the d c office of human resources related to a race or tall and claim that supposedly happened buying miss myers not miss wilson and it was a the protected activity supposedly occurred in may and this is laid out in the charge hundred forty seven you'll see this very detailed as to what the retaliating claim they're talking about is it's not just a different actor it's not just a different basis for the tally asian it's a different complaint that occurred in may not in of ms britt and this rush is the powerful timing evidence that notwithstanding difficulties in the job they gave this bridge new duties they took the duties away they gave both ms britain and this rush performance appraisals and it was the case in particular particular right at the twentieth that says she was performing the very same items that they now say good morning to her firing in a fully successful manner and then the next day they admit as shown in the record that they started thinking about firing disparate anyway the  after those relate to the ramadan dispute it's also important to know that the statute human rights act does not distinguish race for tally sheet from religious retaliation there are a number of types of conduct that are made on lawful by the statute such as race discrimination sex discrimination and cetera and then retaliation it is forbid and i also like to know in response to something mr blonder