buckle when you're ready to factual issues that arise in this matter to begin with napster only applies to title seven claims there's no to the plainest under nasser did not all claim under nineteen ninety one it was not addressed at all and let me just tell you what bothers me if i'm i have trouble seeing that you're climbing gazer protected activity you know you can that's that's one of the elements of the climate that he engaged respectfully disagree i think that nasser is the circuits in the district court are split on oh it could matter in some cases i just don't forget matters best but go ahead and tell us why you think yasser doesn't i don't believe there's any dispute that the motivating factor applies to discrimination claims under nine hundred eighty one and there's simply nothing in the language in one thousand nine hundred one that allows retaliation claims to be divorced from discrimination came claims i believe that just askin ginsburg's dissent is should be adopted by this court when it comes to nine hundred eighty one claims the courts precedent that have applied the motivating factor standard i would refer the court to edwards versus jewish hospital it's out of the eighth circuit from nine hundred eighty eight it was before pricewaterhouse in which the court applied motivating factor standard there are multiple differences between one thousand a one in title seven the courts have recognized that it's independent from it's an independent separate action and they are allowed to have differ recognize that nassar does not apply and the motivating factor standards should still apply and none of the cases cited by the bully or even the district court in this matter are binding and there was no analysis on whether nasser pots not anyone's i don't believe there's any persuasive effect either in this court and smith versus xerox which address the motivating factor standard under title seven to that we're bound by circuit precedent i believe that this court is also bound to continue applying the motivating factor standard and if i may all were for the rest of my time to my  mr story and the apparent to our client inconsistency in the application of the no tolerance policy of weyerhaeuser mr mitchell wrote as anonymous letter letter just about that one joke i mean was it about some long involved pattern of racial discrimination it wasn't it mentioned that one joke you are correct but it also mention other we know that neither nine hundred eighty one nor total seven as a general civility and so you still have to be complaining about something that at least arguably is a violation of one of those two and how is one racist joke or one homosexuals joke while reprehensible in terrible and i wouldn't do it and i would condemn it strongly how is that a violation of either one of those we just we just submit your honor that it is in the circumstances  darrell jackson who told the racist joke used to enlarge talked about throwing him down a well and drew a drawing with across only the top of it and there was this little paper mail this little plant in nyc that it is a hotbed of of gossip and talk and so it got a rant on that mr jackson told this remark to people and mr mitchell my client a heard this and he was astonished because he had personally observed the same plant manager fire on another employee and half an african american employee on the spot who had called another employee the n word on the open on the floor of the plant he had same he had relied upon mr stories promises when he came to work there that he was going to enforce the no tolerance policy he saw mr storey do that when this other employee is in work then he learned that mr darrell jackson had made this racist joke and there were both whites and blacks in the plant who were paternal about this people heard joe i think approximately four it was in an office of supervisors my client was also a supervisor but he did not happen to be in the office at the time that joe was told so it upset him that that was going on coupled with his knowledge of mr stories use of the homosexual store in another conversation and with his knowledge of mr stories bullying and intimidating tactics with his own crew which arguably i suppose that may not fall within the protected activity range but the letter rick that's correct and what's the next it calls a length where you have to look at the totality of everything the timing you have to look at the fact that my client was a thirteen year employee in this plant filing this anonymous letter that there's no evidence anyone knew reset but mr story the circumstances of mr story's reaction to mr story line there had been a lot of this letter sent out about the same time he learned that he knew that  client perceive that as he was supposed to go discipline this premium or and he felt that it was a closed meeting with tolerable corporate executives that they open the floor for comment and that he might be mr mitchell might be open to a retaliation claim by his crew member if he disciplined her for speaking out as she had been encouraged to do so mr story i forgot your question i'm sorry but mr story perceived we believe the jury should decide whether mr story who has knowledge of the anonymous letter his knowledge that dol mitchell was not going to discipline a crew member who complained made some of the same complaints in the open formating spreadsheet that was drawn up without any basic criteria or cure your argument basically is this firing of twenty five people in this plant was a ruse to discriminate against your guy and that's my guy that sees asian  hundred seventy five that's a reduction in force the fact that somebody else has to now take on extra work or reshuffle or whatever you still reduced your force from two hundred to one seventy five did that happen or did they're not we believe they did  reduced hourly generally considered a valid thing even though people get hurt along the way and it's very unfortunate i'm very sorry when people lose your job but that is a very common thing the announcement that there was going to be a reduction in force in  that mr story was told he had to fire the guy who had told the right place joe and mr story was placed on a performance improvement player and oh by the way you're going to have to reduce your force all of that happened within twenty that came from higher up based upon some orders and numbers that were declining no question about that a reduction in force is a legitimate business reason for firing people we're not denying that but what we're saying is the way this reduction in force was handled in the jury should decide whether mr mitchell's inclusion in the reduction was in fact retaliatory in tina and the territory unt the protected status question i was in was a threshold one with recruiter mccord from having to address any of the other issues because they would have to reach that threshold under either a general originally set it was protected to say and this anonymous letters of what is your he cited a case of texas or ship or case called jones and i try to distinguish that at the district court level by pointing out that the complaint that was made in that case was grounded in an allegation of sexual discrimination  and in fact that's the thread and that's one of the threads that i suggested in our brief when you read the cases and that's what's lacking in this case but when you read the cases even the cases cited by the appellants all of those cases involve you're saying that even if they knew he wrote it was an allegation of a racist joke or have a reprehensible isn't enough is that that's right there are actually three different incidents and the anonymous complaint there is the  called racist joke which was made in the presence of three white superintendents two were participating one was listening the one that overheard johnny mccurry is a supervisor he's the one that apparently  told others that the joke that this had been made that's how it was disseminated and what the evidence shows is that mr storey who's here in the courtroom immediately took action without taking place are a good excuse and he immediately disciplined darrell jackson told me and do this one more time and far later six weeks later a new sheriff came in town terms of the regional manager and canned the guy he was gone because of that because she disagreed with what the prior regional manager done so that can engage in protected activity of reporting racial harassment even if you don't know that maybe it's been addressed it would still be protected activity to report to racial harassment could be the question is whether this even arguably rises to the letter of a level of directed at anybody in a protected status and that's the missing link that's why it's not protected activity the fact that it was disseminated by one individual does not raise it to the level of protected activity because the joke was still not directed at somebody who described heard about second hand second all of us and the one that involves this what's called homo sexual mark the other two things that are mentioned the anonymous letter of both performance related comments that were made in less than mr mitchell was not present all of them i think all of them were caucasian as well and they were mr stuart he was asking them about how can you account for your time and they can only account when they added up all the time that they were doing for sixty percent of their hours that they were actually worrying that's when he made the remark about what are you doing are you engaging in that kind of activity the homo sexual market or the what was perceived as a homosexual mark again nobody in protected status is in the room mr mitchell's not in the room it's not a protected activity that's involved nobody was a target in that activity the front of the last incident again was performance related it was mr syllabi constructs they have a one big line that makes huge eighty by four feet laird that's been near glued together strips of things that are used for subflooring basically and they this was a regular review of the performance of their crew this was the lowest of the four performing crew this was the lowest performing of the four production crews on the facility and he was castigating him for that his testimony was that all ethnicities male and female is not protected activity it was not targeted at anybody with protected status those are the three incidents that are described in the anonymous complaint and that's it and that's why my argument they are there were three because i think the question of the day is the who are the decision makers or who are involved in the decision making process that was ultimately led to his terminations that's mr story steve story who is the plant manager greg borden who is the assistant plant manager essentially and billy benefield who was the human resources manager for the facility those were the three that were added i was going to add janice adams is the regional human resources so she oversees several plants including the nachash so and so her role in that was also to set up the matrix set up the system that they used to identify that it's actually forty five individuals forty five arlene poison for production supervisor complaint this anonymous complaint did lead to an investigation the upshot of that investigation was jan mars who is the operations side of the regional management so steve story reports to  operational janice adams is an adjunct there adams and mars are on the telephone and tell us the story that we're going to send somebody down because we think the leadership at this plant is lacking and so janice adams was tast and this is very important i think for the nature of the why even if we had to go to the mcdonnell douglas byrd shifting there is no proof of pretext at all but janice adams went down and interviewed everyone on the leadership team excluding i think everybody and leadership team including the the eight production supervisors she independently without anybody else's input she get independently gave mr mitchell the lowest ranking  superintendent she ted keep three categories and i'm sorry i don't remember specifically the sort of keep him on a training and release them and don't we are the last one was released and don't require and mr mitchell was the bottom of that category so we have somebody who's not on the side who's not involved in any of the the per se investigation should not involved in the day to day activities coming in doing this and then a few days later they went through the reduction of force process ranked mr mitchell the lowest performance you have two different rankings of him being in the lowest category so even if you go to the pretext side of the quezon even if you try it had to consider that there is absolutely no proof that there's any falsity or as as a judge change put it ruse to try to target mr mitchell you know you're going to fire fifty people so you can retaliate against mr mitchell seems extraordinary to say  consistently low or no no they have not that into their start when they start dropping off this distort i don't think we have the complete records going back to the beginning of his career he had there are several different rankings this year was the first year that he had a below ranking for the records that we have available for him he was listed as sixty five percent achieved ranking in his end of year and thirty five percent below but he was given an overall overlay rating of below and there were five different factors and this is another thing if you want to go the pretext of poison there were there were five different factors that mr story described as being the basis for this that were really that are not addressed in the briefs on deal that's really not a opposed in terms of him meeting there were certain number of projects he had to do and principally the reasons that he was subjective a lot of it which was what they call fall down because this these these machines prest of the new year that cost i don't know how many sheets of the near together but there are a lot and if you mess up doing that you've got to throw the whole business away that's what the fall down is and so his address it can i point out a couple things on the protected status issue before we move just just there's a new case that this court came out not not a different panel and it is persuasive because it's not presidential but about two weeks ago that makes the point that i think i'm making about the underlying conduct needing to involve some unlawful discriminatory or harassing activity just a scrawled young you saw on b u i s s o n versus board of supervisors of the weeds in the community and technical college systems delgado and it's its fifth circuit docket number thirteen hyphen three one two six nine cited in november ten twenty fourteen and there is a very brief discussion on the retaliation but the upshot is that the court dismissed it because there was no finding the underlying activity involved in a kind of unlawful conduct that said something while i thought it would be useful point out says that she reported some of the plus is annoying behavior to dean gruber however there is no evidence that she indicated that these otherwise non race based incidents were motivated by race or national origin so i think that's along the lines of the questioning we're having here about the the deficiencies and why this anonymous complaint is not that in fact the cases that the other side points out make that same point every one of the ego see charge some sexual discrimination complaint some internal complaint that's been involved them while some on lawful activity and then the retaliation claim arose out of that so that's the common thread the nasa case in terms title seven have always been the same and there is no rational reason for a different standard to be used for one and to the other and that is been the law of the circuit for at least thirty years in terms of cases that i'm aware of i'm sure it's longer than that perhaps even dating back to whenever the first tell you should statutes were in there but that's the principle reason and the so this when the supreme court came out on the side of the because the language in connection with title seven retaliation claims means that the but for standard of causation applies to that by now g e should be applied in and has to be i think applied for consistency unless you're going to upset the longstanding president of the circuit end of the united states supreme court which is treated both of those claims in the same burden of proof so i think that's the fundamental underlying thing title seven specifically has race based claims that are actionable under that statute so the same standards of proof should apply and there's no reason to change that president of the other side has not cited  case is that say that and i think when you closely examine the cases that they actually do cite they do apply the same standards of proof i would direct the court's attention to i think some of the one of the important things is we have some stipulations in this case  lot of the facts that are material to the issues with the court are the subject of stipulation it's in the pretrial stipulations that were filed in this case beginning at the record of five record on appeal five six seven  most of the panel has any other questions right maybe argument thank you very much that this court and other courts within the circuit have routinely been generous with finding protected activity in anonymous letters in calls to hotlines in memos and various activities where the facts and the circumstances in this case strongly suggest that the decision makers in this case in far that doll mitchell in the wrote the letter or was directly involved in the preparation of the letter based upon the problems with his crew that have been cited by the way dol mitchell received an exemplary high achieved year in evaluation at the end of two thousand and eight three months later in march of two thousand and nine is when mr story attacked his crew and calls him a cancer on the mail that i did improve their numbers the documents and the records in the record established that physics of it but referenced things that had to be true now because they weren't properly compressed did your car did your clients division have a high number of those they did for a period of time they did but the one he got an exemplary report at the end of two thousand and eight so obviously it would have had to have started any continued problems on down the way until december of zero nine when he was righted beloved and when he was terminated in february so but just one more thing and i don't want to belabor the point too much  but the one incident of race based problems that was referenced in the letter let's assume that may be the only thing that is a tire bolt to a claim of retaliation if that incident is agreed just enough then this courts have found that one incident could be oh we're well aware that the problem is typically as he said if you tell a joke and it's not directed at somebody in the protected class and it's a one off joke i don't think we've found that to be enough for anybody's family to be known and although i want to be clear i personally find it reprehensible wouldn't tolerate it in my workplace that's a different