error one fully crediting lowe's disengagement claims in evidence as justification for the termination finding that the evidence and dishonesty in his assessment process was immaterial and could not be considered by a jury let me take you through each of those quickly st the problem with the disengageme t evidence a jury could readily disregard are rejected in disbelieve the timing is the person problem the court focuses mainly on these alleged confrontational discussions about severance cleaning out the office back in april and may but the terminations of the last days of october there's no real connection between those discussions and what happens when there's no evidence  men in that time except the wrong objective truth actions that he was not checking in and not participating with no record of any complaint claim that is ours email him to remind to ask why he was not on the agenda for a single meeting in five months security could readily decide in this case that mr jones who i is extraordinary a black man the st black man to have any significant management authority at lowe's leads the company through a dramatic transformation of its fortune bringing in new talent and new methods that has results that are that he is a claim for both inside and outside the company but jury could find that he continued to act in that same manner for many until his terminations and there's record evidence of examples of him doing that the rd problem which relates to that sort of nd piece here is that there is evidence of dishonesty and the jury could assess sort of say there's disputed evidence about whether this was a c e o assessment or some broader executive development effort in fact if you look at page two thousand six hundred and twenty four the record you'll find the august two thousand and fifteen single page c to bring in an outside consultant to do a in depth study of these two men and what their skills were to decide who should be the internal successor and that resulted in objective testing the psychological testing  should not try to determine if your honor that was in the negotiations afterward and i actually think that that some of that is actually evidence of discrimination in this case for this reason the proxy statements that are in the record show that he made he had more than nine million dollars in stock options issued to him while he was leading the search resurgence of this company just in the in two thousand and fourteen of five hundred and twenty one thousand five hundred and sixteen he was back in april and may when he was presented with after they spent the month of may trying to rewrite this profile to make the assess the competencies the linchpin of who should be the c e o successor and he barked at the validity of it and never black agrees that it was in the hall and he then said rather than fire me and he hit his testimony is if you look at page two hundred and sixty one of the record that miss webber met with him and told him he had the very word for word repeat that he couldn't do those three things that's what they wanted him to do he barked at doing that he said if you're going to fire me if you don't want me here let's just work out the sentence they had that discussion for time all in the context of them demanding that he except that he had lacked basic competencies and him expressing his reluctance to do so insane if what you're telling me is you don't want me here let's work out some separation and this is after leaving this company on the you if you look split the documents side by side i just suggested some of the seven hundred and thirty three and two thousand three hundred present you can see there doing these comparison there those are the only two who are tested that way in this accepted and put in its order which it would be awkward to have to before the board because i'd already told the board i had reservations but that report to the board in august came at the same time capable successor so then we get to this critical meeting a series of meetings in october which is what leads to determination dr rivers comes on to over seventy and she brings with her her report to the board and here the court gets this wrong you said that she brought requires this why is this anything other than i have been an assessment why isn't this just what companies do all the time which is to waive the relative merits which involves certain objective and but also certain subjective components and decide who is best qualified to lead to lead the company when one individual steps a day on  and it it seems that for a long time mr new block was grooming understand that that is a lot of what i'm asking what if you're reading the record here it seemed to me that jones was being groomed and for a long time he had the inside track and be confused or the racial discrimination issue in the case is determination and the import of the assessment is it is the sort of thing that happens all the time although for lowe's had never done this before they never brought in an outside consultant because it always had a clear affinity for miles further in going through this assessment process with and the issue is that he fires him raw and then and then he and webber dramatically modify dr weber's assessment of malts berger to whitewash it present it completely contrived and play big they say if you look at the documents here's the comparison they're trying to get to this october th she brings her report back over sevent brings a report of twenty to forty eight of the record and it's not this assessment of every executive it's mossberg or in john's and they brought in the rd mcdermott and they are ranked on graphs it's a comparison like you're talking about just a comparison but the whole thing has backfired because she writes john's animals for both is very high risk now because of all this kind of controversy i guess but the assessment of most of this summary assessment of jones is still extremely kind of thing that happens oh most good deal of the time that you have two people who are in the running for the top position at a particular company and it becomes clear that one of them is going to get them get the position and then the one who's not going to get the position loses loses interest because his goal and ambition is not going to be f you're on the jury to believe in this case that simply didn't in this case there was was there not an objective manifestation of marking time when he o work work work for me or worked in a company where i was working if they if they cleaned out their office i've read communicate to me well i packing up is that he thought he was about to be fired and he was asked the percentage rather than be fired and that's the reason and then and that's the issue he doesn't get fired for five more months in so what's and there's no manifestation of disengagement from that encounter in april and may to october when he's doing everything that he had been doing he's the one who's making money for the company mr martz pervious division is in every aspect of what he's doing the person who's carrying the load it loves is mr jones in the issue here isn't it the jury could this believe that he became disengaged and could find that this is as the said because there was no promotion out of the assessment the dishonesty in the process was immaterial that's the legal issue one of the legal issues in this case the jury could disbelieve them with mint and find dishonest america as a matter of business practice if you say one individual is producing a lot of profit and one individual is running a loss  i mean why would a company a fire the individual who was producing the profits of mean it doesn't make if it's as clear cut as you say it doesn't would make fire it makes sense to dismiss the very it's hard to i don't mean to be interrupting you it's hard it's hard to do it over the phone like this is but here's a piece of evidence that you really need to see of the company and moved some of mr maule to progress skills or visionary stuff about you know the omni channel stuff and all that you know ways of bringing about reaching customers and he said that was a higher calling than making a pro that's irrational you just said it was and that's at the heart of the sort of bizarre is on this process they were deliberately dishonest for whatever reason so that mr most burger would come out ahead in this process because that's the end that no one wanted  it why is this a matter of race rather than just cumin chemistry at this point it's just sometimes people have good chemistry and sometimes they don't that happens within a company that w average within our company and what florida why is this a matter of racial discrimination as opposed to just a matter of who gets all the way home well but that's not that's that would that's the issue for  from st mary's arson or down that's the that's how you get to trial but if the jury can disbelief the justification here that he became disengaged and finds evidence of dishonesty particularly if they can find that then you get to  trial and at the trial we figure out whether this is just chemistry between two people or whether the jury decides this isn't fact risk and that's all we're asking that we should have a trial about that question all right i'm going to ask you  our colleagues have any questions for you judge floyd those are george growth yes they're careful you agree there is a categorical deference between favoring one person over another simply because the chemistry and favoring one person has or another because of race correct well this is sometimes a subtle categorical difference in the and that's the question that would be the question in this case and that's that's the question in every wrist discrimination case was there something other than race that was driving the differential in treatment or work or was it  well one would be what i was trying to explain at the end after he's fired there he knows of two white executives who did not qualify who did not qualify for their stock when they were separated from the company during his tenure and they got their stock through a special request by the border a special dispensation and he asked for the same when he's let go and they do a public pillory up and that he's greedy he was just that he was being treated completely differently than two white executives  that instance but again the question here is under the framework your honor the question isn't having to prove race it's having to show that the jury would disbelieve the justification and that enough that's enough to get to trial but especially if on top of that there's evidence of dishonesty in the way that they handled this matter and judge bell correctly reacted in court when he saw this dramatic alteration of the work that rivers had done taking away every criticism that she had of malts berger and white washing this would be like an employee being fired for for taking issue with some aspect of a personnel about a way should in the black  in the white employee not only doesn't get fired but all of the criticism of the valuation get removed that's what happened here and it doesn't make any sense and race is the best it least is an explanation of that  you every every every time two individuals are are are compared for their suitability for a particular position it doesn't necessarily stated reason for jones terminations was untrue or that the real reason was because jones was african american at the rd rd step of the mcdonnell douglas test and under this court's decisions in cases like guesses once loz proffered a non discriminatory reason for the terminations the burden shifted back to jobs to prove number one that the stated reason for the average section was untrue and was a pretext and number two that the true reason was discriminatory and those two embedded elements are k since the briefing in this case and we did drop a footnote and file a rule twenty eight dollars j a letter about this the supreme court decided the comcast decision and that case holds that but for causation as is required to prevail in the section nine hundred and eighty one case that makes the nine hundred and eighty one different from other statutes like you saira in title seven which allow a motivating factor analysis so i think that the question at the end of the day for the court and for mr barr jess is where in the record is there any evidence to show that but for mr jones this race he would not have been fired and the answer is simply there is no evidence to show that i want to start with the evidence that corroborates the nondiscriminatory reason for his terminations have become disengaged and cleaned out his office i there are seven examples from the record that i think corroborate that number one it's undisputed the jones began looking for jobs working on his resume as early as january for two thousand and sixteen that's before the hay assessment even took place he emailed a resume writer saying that it was now to time for him to start looking at jobs at fortune five hundred dollars companies in a c e o position that's a page for sixty of the record and and remember that there was no question at this time that there was no plan for no blot to leave as the c e o of loews he was expected to be there for another three to five years at least number two it's undisputed that the very next day after jones sent that e mail to resume writer he wrote himself a note and this is a page for sixty three of the joint appendix the note was talking about was what was working for for lowe's economically he said it was long term growth and short term profitability but then he's talking about leaving he says my timeline this quote my timeline is too short to spend three to five years waiting for the business to figure this out unquote and we detail in our brief the various job efforts he made to find another job it  other companies number three it's undisputed the jones repeatedly suggested to both no block and other senior executives that he be given a separation package so he could quote move on that's at pages for example two hundred and fifty five thousand seven sixty seven of the joint appendix that clearly shows disengagement number four to judge wilkinson's point it's undisputed that jones cleaned out his office acting like he was going to be let go he testified that he thought he was going to be let go and imagine the effect quote from mr alice that's a page for sixty six paragraph nine now mr john suggests in his reply brief a page fifteen that this fact is contested but it is not he contests a different fact about  a week before he fired jones that that he thought jones should go even though ellis had previously supported him and thought he was a really great employee number six it's undisputed that board members in august of two thousand and sixteen noted the negative  and he cited as an example of jones leaving early from a key customer meeting in charlotte that's a page seven hundred and sixty seven dollars to join the panics and there's no response by mr jones to that fact in his in his brief he wants to say well jones kept coming to work and all at but we're not saying he stopped working we're saying that no block perceive him to be disengaged and that's fully corroborated by the record moreover this is not a case where the employer's recent changes are or is based on post hoc rationales niblack stated reason has been consistent throughout the case so so this case is governed by cases like short sheriff from two thousand and sixteen where the court cited the employer's consistent reasons for why summary judgment was appropriate and this case is therefore distinguishable from cases like jacobs from two thousand and fifteen that mister large just relied on in his opening brief where the reasons given by the employer weren't given at the time changed consistently and there was significant evidence that the employer was making up reasons for what was a discriminatory destroy the court and love it  versus cracker barrel distinguish jacobs as not applying where you have a consistent reason given by the employer i think and the reasons are corroborated in the record now let me turn to the other aspect of the system that is where is the evidence of racial animus or that the stated reason was a pretext for discrimination discrimination on the basis of race there was a zero evidence presented to show th also failed to overcome the same actor inference that the person who had previously promoted him and judge looked and you're exactly right no black was grooming jones to be a successor and there is ample evidence to show that i need to make a the point of claims that no black did not recommend jones as his hit by the bus successor in two thousand and fifteen obviously this this is a key issue is because it goes to the idea that no black was very supportive of jones and it's very unlikely that he would then turn testified that he did recommend jones in two thousand and fifteen as he said by the bus successor board member morgan corroborated that at page two thousand seven hundred and ninety three of the joint appendix and this is actually quite an interesting point this is we're talking about august the very time that the board understands that jones and mossberg are the potential long term successors niblack is saying if i'm hit by a bus i want jones to succeed me i mean that i think really demonstrates judge wilkinson e beginning in january two thousand and sixteen started to look for other jobs he overreacted to the hay group assessment which was overwhelmingly positive there but as in any leadership assessment there were some you know constructive criticisms and there he completely overreacted to them he talks about their hay assessment as if there was something that said he was a terrible leader but that mr lott just doesn't even tell you where that is in the assessment right he just completely over reacted to it he became petulant about it and at the same time he was looking for other jobs so it just it's really unfortunate thing that that happened but this was not lowe's doing and the  fact that the new black gave him an opportunity to to do better mr large just tries to make an issue out of the the timing there but no block the cleaning out of the office incident reflect the childish behavior by jones that was in june and july th pain and neglect is trying to give him a chance he tells him you know you got to get your head in the game we got it if we want you as a member of the team and things just didn't improve and that's why blood terminated him further to that point that it's undisputed that niblack gave jones a glowing performance review in february two thousand and sixteen this is before the hay group assessment came back that february two thousand and sixteen reviews  actor inference which dates to your honor's decision and proud this is a classic case for applying the same as for inference the main argument against it is is the largest says well proud involves a six month period and here you have a thirty month period or longer but this court's on bank decision and taylor involved a twenty seven month period the employee there was hired in august in in august of ninety two dollars and fired in and twenty seven months later you have a thirty month period here so it's very comparable to the period in taylor and during that time and i'm starting that i'm running that time from the time niblack appointed jones as the chief customer officer in april tw fourteen he ultimately determined it needed him in october th and that's thirty months later but in the interim he's he's designating him appointing him recommending him as his hit by the bus successor he's giving him a glowing performance reviews in february and april th seen and he terminates him and in october th saying after this that the petulant reaction he had to the to the hay group assessment and he didn't get his head back in the game so this is clearly an appropriate case for applying the same actor in inference and mr alexis has no explanation why mr niblack would have turned around and fired him after having promoted him so much that he tries to generate a factual dispute out of the idea that the board didn't accept the blacks recommendation that jones should be the hit by the bus successor but it when you look at morgan's explanation for why that was it was because the board understood that mulch berger and picture that mr large s is trying to paint the only time that the plaintiff came close to suggest anything relating to racial animus is is not even argued in the reply brief  or and i think has been dropped but i for fear that it may come up in the in rebuttal argument i do want to touch on it and we addressed this in our opening in our in our brains there were alleged scripts a remarks by the block refer referring to the show blackish and referring to the donald you know when donald bill's built the wall comment there mentioned obliquely in this in the statement of facts in the opening brief we pointed out in our  argument was not made below and on the motion for summary judgment and it was not contained in the argument section of the opening brief and is therefore waived and mr blair just dropped it in his reply brief but i just want to make it clear that those those scream remarks which which don't even tell next to any action by the block are not proper in the case and you know sometimes of you know if sometimes falling outs just just happen a minute there there are unfortunate but  you know it can it's often just one when two people get a low when two people don't get along or whatever the that happens for many different reasons  it isn't necessarily something that relates to race issues just it's just that people get along and sometimes people don't get along and you know it just looking at the record i'm just wondering i've got that seems to be what's going on know what's going on here and there was for the longest amount of time or very laudable it to helped to give mr jones a very meaningful role in the company and that that was a good thing and you know he was given a good chance and i'm i'm for one i'm sorry it didn't work out but you know i'm sorry things fell apart for whatever reason just doesn't i don't find it tough hard to attribute it to race in the sense of creating a triable issue on that point i wanted to ask you there was also a wrote a wrote a good opinion saying that a negative assessment of an employee is is not defamatory under north carolina law and lot of the statements were either statements of opinion or they were absolutely true neither category is is is actionable yes like you general because i come from very you know grew up in virginia under virginia law i was quite surprised to see how clearly north carolina law prohibits a defamation per se claim based on a statement that an employee was dishonest or untruthful or unreliable and judge wins opinion in a losing versus food lines an excellent example of that mr i just argues in his reply brief that north carolina law distinguishes between libel and slander in that regard and somehow that's fiction doesn't apply to libel claims that's just not true in the three north carolina district court cases that we cite in footnote fifteen of our brief are examples of libel claims where the court television news station about being engaged in race discrimination and it simply defended itself by putting out a statement of page five a way of why it didn't discriminate against mr jones on the basis of race that is plainly covered within the privilege of reply  and i think i think the court would do you even cover that in your brief yes your honor so we would ask the court to affirm on the basis of the forty one page opinion by judge bell that that was exactly right on the law thank you your honor wait a for a bottle mr largest we are happy to hear from you in rebuttal thank your honor let me let me start with a few things st of all it is not the case under the law that we have to prove that race was a factor at this stage we have to only prove at this stage the jury can disbelieve the evidence the claim of this engagement and find some mendacity if the matter was and this case went mr jones was petulant at being told he couldn't do those basic things couldn't lead a senior team to go to zero or whether he was threatened with term a nation if he didn't accept in his absence which a jury to believe is that he was threatened and that's why he had the reaction he did to the process not not out of some sort of childish childishness but out of the very and that involves the cleaning out of his office and that that that fact troubles me because if you whether you think you're going to be terminated or not if you are there's plenty of time after you've been terminated when you can clean out your office but to be cleaning as i know you believe in your case and that's very commendable and i only respect you for that but what i'm the point that i'm making is that it is extremely i would think it would be extremely demoralizing to be working next to someone or across the hall from someone and i find you know everybody is trying hard to make the company work and you don't want one person in the company you've had hello continued a hell of a very senior and in tablets out of you anyway and he cleaned up those cabinets because he would thought that he was going to be fired he would be walked out just like he was walked out the day he was fired he want to be able to carry all of the things in a box it that so that he could be on his way he he thought he was going to be fired in days you heard the time he did that and what he did in response was he went to boston the next week and gave a glowing report on lowe's future to boot group of investors who wrote a letter back saying it was the best presentation at this at the session he wrote to his team about doing this campaign w do to look at cost cutting measures he went on travel to stores and met with is met with store managers and assistant managers and got reports back that in the sixteen years with laws they've never seen anything like it the evidence is that he was completely engaged in professional trying to figure out how to navigate this unexpected development where he was being told that in this process he had to accept that he couldn't lead people in he had about that and the question is whether he acted as he did because he was threatened or because he was to mature and europe you seem to be taking the position that it that as as a matter of fact him doing that a concern with two things one is that he left one meeting early and that he had to be reminded to come to another meeting in five months so there is a record here were a jury could just disbelieve that it's there and all over the place and you give you have explanations that are inconsistent and or in fact at odds with one another but but here it does seem to me that there's a certain consistency in the explanation which is that he's become disengaged and i don't think they really put forward anything else and you know you have other members of the board of management indicating that in their view their perception he was disengaged and then you have a certain corroboration even though i understand the company was aware of the of this right at the time but that he was actively hunting for new jobs and it's some point you know it is at some point all these little pieces begin to board member who testified that they had concerns mr never like testified the board member said things to him but the only evidence the record is in august out of the blue he sends for the st time an email saying that he has some concerns about john's level of engagement that is right at the same time that dr rivers has come back and said that her assessment johns is still the superior candidate even though they tried to rewrite the problem in his that that leads to his terminations and then  interview of mr mossberg when they reopen the assessment look at the last page mr mossberg was missing c e o staff meeting and sending a message that he doesn't need to be there everyone else go so they're firing him because he left one meeting early and had to be reminded to attend another but mr mott's burger who has his crib all criticisms why clean up his assessment is not going to regular staff meeting that's disengage and there are other people in the same page of same he doesn't show up he's never here why do you waste so much mr johns is the one who was keeping this company on course during all this time when he's been demanding do except that he can't lead people  that this process was going to be used against him and it's the dishonesty in that process and the fact that objectively he continued to produce and keep the companies ship steaming he's the one who's motivating people going around and leading these programs on the day he's fired in his it are all his notes for meetings the day before i'm sure long range planning he has big still completely engaged in trying to be professional resisting a blackish but there was in the record but the more important thing that was in his brief is in august he went to human resources and complained that they were running all the blacks in charge seculars out of the company and that there was a concern about racial issues in the company that is