well losing your job is is never a fun thing to do but in terms of the types of ways that you can lose your job losing it in such a way that it essentially bars you from the field where you have spent more than a decade working building up a name for yourself building up an income stream for yourself is the worst way to go and that's what we have in this case we have a delightful employee african american who worked for fannie mae for proximately sixteen years never anything bad on her resume on her in terms of her guidance her immediate manager didn't understand why she had been fired her superior her second tour manager didn't understand why she h business plan so that there were that they had all these brokers out there helping them sell properties after the financial collapse in two thousand and eight he said you know for small brokers out in the country it's also difficult to comply with support all she knew was she was supposed to go out and find a new i knew a broker in an area she asked her manager can i go do that she she got permission to go do it she went and she there's a list of people who've applied there's one person on the list and i was the person that she picked and another thing they do to make sure they're getting somebody good is they go in they they look at the brokers and other areas that could recommend someone an interrupt only because the claim isn't whether fannie mae had you know good practices or this doesn't seem harsh and how come the issue is disparate treatment as to your client so they may not have had right checks and balances they may not have trained but were people treated unequally isn't that the essence of saying here's an employee that's been there sixteen years never written up a manager doesn't understand why she's fired her managers manager doesn't understand why she's fired but in a logic they present that seems supported to me was all those people that fell into this entanglement too cozy with the brokers giving them an unauthorized access to things they've all done an impropriety but the ones that not only did that impropriety confusing as it may be but then had any aspect of concealment we have to terminate were a big government entity and the ones that in any way conceal from management they're gone and where what's the flaw in that how is there singling out of your client so what we have is a situation where some people got referred to investigations and got the third degree treatment and some people did not of the people who were let go they came up with a list eleven of the twelve were minorities or women so we pointed out what about david box you say well if you're not supposed to created a perception of impropriety david box approve business plan for these back office services david box said mr spenlow would you like to come do a commercial with me i will put it on fannie mae's website so all the world can see that we think you're just a wonderful finch ryan finch says i don't understand why she wasn't fired to ryan fitch says i was on a phone call i agreed to be quiet during the phone call because she didn't tell a manager yet and i don't want to get her in trouble i read it it looked like for better or worse your client suffered terminations because there was the e mail where it looks like tacit agreement with let's keep this under the radar screen that phrase jumps out and then again for better or worse she is honest when they investigators come and says i didn't tell and that's what gets her terminated and sort of big government saying people that know about impropriety and choose not to tell it affirmatively that's terminations and small didn't seem to have that that type of e mail that implicates her in deliberately not disclosing what she knew was wrong so let me walk through this because i think the evidence is actually clear that she did not conceal do you mind if i hand you a few exhibits there on the record  marcia that was her immediate peters or immediate supervisor is not aware that you're in the area yet because the broker source had all the in the information however i will make clear where the next time that we have her monthly one on one not sure she's going to be a big fan do something can be evidence that the person actually does what they intended to do this is a statement that she intends to make disclosure not any evidence of a conspiracy that she won't make it to school i  have to say i got lost in the brief i thought i knew hellman from having taught evidence that's a hearsay doctrine that you can admit a statement of intent for the jury to infer a future fact but here this is you're us to look at this statement of intent and infer the past for writing hilman they had the the letters the famous letters from and the question was did the guy do with the letters and indicated he intended to do in other words go off in these territories with mr hillman and if if he did what he intended to do that he is body could be the one they found him or try you're seeing an e mail from an employee that's doing malfeasance if that's what's happening is something that well someone thing that techno she knows in the mail the band just wouldn't want to be a fan of what she's doing as long as the e mail says i intend to disclose it so the conclusion there's a there's a jury question as to whether she did buy that statement of intent or statement of intent is evidence that she actually did so i have difficulty with that but i do know the supreme court case you're citing am i right or wrong that she did tell the investigators that she didn't disclose it but then in her marcia peters that she had been told listen and when my client looked at the notes from the investigator she said well i knew i intended to that refresh your recollection must have done exactly i'm sorry and i do far but the did what about the top line so i can stay below the radar that's fairly incriminating right you highlighted it force well it is important because it will be will need that  putting things and conduct in this is not her saying i'm going to keep you under the radar this is saying i can if you look to who all right again there's no place here my client says yes let's keep you want to read miss small put anything is there anything suggesting i can keep you under the radar from my own bosses from any of the comparatives it just seems to be a different eleven zero that we saw an e mail that from this morning we did get testimony from mr finch saying oh yeah i  was on a conference call i stayed quiet at her request and they've not done anything so far as i know to the six months that's a good point ok so between these these first two e mails on august first finally we get some guidance from fannie mae in terms of what you can and can't do on back office services so august first mr cox sends to marsha peters who sends to my client here's what you can't do for back office prior to that time the evidence is clear there was no guidance at all given to my client as of august first there was so by august fifteenth there's a complaint that arises the question is whether or not  who is actually doing the work and so my client is doing an investigation and she has correspondence with mr finch and at this point in time basically what we've got here is mr finch saying im is happy with my services but go ahead and have marshall give her a call if you like so at this point marcia peters can't say that she didn't know that mr finch was participating so the third page these are the handwritten notes from the investigator and so it's handwritten here is the investigator is talking with marcia peters and show she feels like our  finch was trying to fly under the radar and then under that maybe and then there's kind of something we don't quite understand told her are upset  maybe she stephanie warren told her that on the prior page which is the last page the investigator sometimes the breviary did stephanie warren's name two maybe s w once told her or have said that it's at least a plausible explanation summary judgment state any plausible explanation i'm supposed to get the benefit of the doubt so my complaint is the the trial court i mean basically she understands there's a change in testimony she understands there's an explanation for the change in testimony and yet she says i'm going to make a decision here about whether anyone can believe you or not that's clearly what she's not supposed to do she's not supposed to be weighing evidence like that we give her a reasonable explanation for the change in testimony a refreshing to the doctor but i mean what i he well i i mean the impression i had was that maybe your client was sort of an unwitting do tend to finches scheme that was going on in other places as well but if so i would have expected guy he says look i went through this master listing agreement as far as i could tell i could do all this stuff oh well now i want to weld i mean what is his explanation if this is such a clear violation of their policy it's not a clear violation of their policies he said i went through their policies and i couldn't see anything in fact mr finch actively cooperated with the investigation because he didn't think he'd done anything wrong by getting access to the ready made information accountants would need if they did any kind of consultants of multiple employees would have had as they did the welcome package for her and he was there at the front end masquerading but if she can hire someone in her office or she can hire a consultant to do that for her but the policy is really clear you can't give those id numbers out and what i'm saying is it's not they didn't train on it and david box gave up his blessing on this business plan so in certainly my client was never given any such training ok so i did just want to briefly say we think there's a very clear case the judge police wiped out the defamation claim and we think that's very your honour's place the court judge higginson you're absolutely right the question in this case is whether warren was terminated because of race discrimination whether race discrimination motivated her terminations the record clearly shows that individuals who were found to have concealed information from fannie mae were terminated there were four of those individuals two were y one was hispanic one was black on its face that is not evidence of race that the standard is not the they are they're firing people of all races the standard is whether the legitimate nondiscriminatory explanation given by fannie ma proof of discrimination so there needs to be some evidence of discrimination in other words that there was some disparate application of a policy or procedure or practice something there wasn't that here what happened here was that  investigations unit a unit separate from the in unit that did the investigation in this case mortgage fraud investigations unit heard about what fiction's been out of were doing and they investigated the problem with what tensions banana were doing was that they were hiding their involvement with brokers with whom they were working and that was a big deal because finch's been eto were not approved to work in the areas with those brokers that they were working with they weren't license mae didn't know that they were working with them and the way that they accomplished that was the provided fake e mails and fake phone numbers so fannie mae thought that it was communicating with a particular broker who was licensed and approved in an area when what the record says they did as i recall the district judge they didn't really address that what the record says is that into the spoken with peters on one occasion and what warren puts forth is that at that time finch told warren about this the steam but the record evidence that is provided doesn't say that what it says is that when she asked him about these areas he didn't give her any information so there's nothing in the record to  identify that she was aware she being peter's not even peter's yes that's right there was nothing in the record to show that peters was aware of this and we also know that because juror in the investigation as you pointed out your honor  admitted what she had done she admitted that since had asked her to conceal information and she said that he did that he she thought he asked her to do that because  didn't think that warren that peters liked him she admitted that she told finch she had not told warren about his arrangement with the job because she didn't think that peter's would be a big fan of it she admitted that finch told her that her manager didn't need to know if she didn't think that if she did want to ask you i mean the woman through working there sixteen years without a blemish and it just seems very odd that suddenly this comes up that you say it's such a clear violation of policy in this whole thing when there's not actually a kickback i can understand stan the concern about appearances and all that and so why don't you prosecute the people who may actually be getting kickbacks instead of firing people who have been there for decades we honor this court may believe that fannie mae's approach was and reasonable or inappropriate or wrong but that's not what this court's job is to do th court has made clear that it doesn't second guess venomous business decisions and each of the individuals who was disciplined or who was terminated the investigative decisions are set forth in the in the record each of them believed that were contended that many of them are suing fannie mae two to there's a second individual who is alleged standards correct and her basis is age and gender discrimination rather than race discrimination so this policy are written in the handbook or were written from the policy your honor is in our code of conduct and the code of conduct says that you shouldn't engage in inappropriate established inappropriate conflicts with within or show inappropriate preference to a vendor over another and again the individuals who were disciplined in the individuals who were terminated would say that they didn't think they did that's not their decision it's  it just can't apply it in a disparate way and it didn't i want to talk about small for a second because what plants counsel said was that there is evidence in the record that small concealed and that is not accurate what the record says is that well i'm going to back up for a second to give you the context the context is that warren was involved in a conference call with her agents and finch was one of them prior to that conference call finch contacted born in said you know is marcia peters going to be on that if she's on that call will she hear me if i say my name and what warren told him was no i don't think she will and so she helped him to conceal him that way now what finch said about small was that he had participated in a conference call with her he did not say and there is no evidence in the record that suggests that he asked or small whether or not he would be concealed that small knew that he was trying to conceal it or that she participated in concealing it but she stood silent that's just that's that's been distinction it's not your honor because number one there's no evidence that peters was in on that conference call so there's no evidence that that that the conditions are the same there's also no evidence that that affirmatively establishes that she took an action and that's what investigations have to base its decision making on because it couldn't read minds it she receives and the honesty in her response to the investigator actually lead to a worse outcome it does your honor and that's an upsurge isn't it it's not iran or it's not the i mean so missed small doesn't say anything but she was she was president when the when finch was fighting his participation right we don't know that your honor that's not in the record there is no indication there is no evidence in the record in the investigative report goes through this and addresses the fact that that there was no concealment what that what it shows is that she did not take any affirmative steps and that is a line that they have to draw and i mean again with the affirmative  your honor first again is her discussions with finch about not telling her manager and i want to be clear she was aware she was aware that finch had asked her to conceal there's that first e mail riis's please delete my information because he didn't want anybody to know because again that e mail was providing a fake e mail and a fake phone number for this broker so they were hiding this information from finding how did wara know those were quote fake because vince had told her that that information would go to him well that doesn't you know a lot of people more than one e mail that's just want to i'm a kurd my mind you know some of my colleagues have more than one e mail right and there's nothing wrong about pat the problem your honor was that wasn't the e mail the problem was that then she asked her to take his information off of it and that he also asked her to conceal the information that his involvement in this because he believed that warren didn't like him that information means and gave i'm sorry i do that frequently and i apologize for that peters didn't know about it and warren knew that he didn't want peters to know about it and warren helped him to conceal that there is affirmative in the record evidence in the record up that there is no similar information like that with small warren acknowledges that the concealment is the issue and that's why she put forth the sham affidavit that was included in the summary judgment evidence i want to talk about helen for just a moment where you got to you said there were several affirmative st could you get back to yes i'm sorry i'm sorry the others were that she was aware that finch had indicated that he didn't want to mourn to know that he was going to be on that call and she let him know that she wouldn't that he wouldn't know about it there was also her admission that she had concealed the information and that's important because remember that this wasn't just you know week or two that it was concealed she began working with finch and the giant in march of two thousand twelve as of august april may june july five months later she still had not disclosed that as of the time of the investigation she still had not disclose that about a year or two years into this litigation back in two thousand and twelve to start two thousand and fourteen two thousand and fifteen she submitted an affidavit in which she said with certainty i did not tell peters it was sworn testimony she provided so that that's later but at the time of the investigation what investigations knew what its good faith basis for its determination going about the information routes in the district court about the difference between more and later affidavit and her testimony because frankly i didn't read her testimony as being quite as equivocal as you're saying unequivocal as you're saying in the first affidavit in her deposition it seemed to waffling i mean she was uncertain about whether which and you know people could be so there are several stages in this litigation run of the first stage was that the investigation point and that's what's relevant here right because the question is what are the investigators know when they made this decision what did they base their decision on the information that they knew at the time of the investigation was if she had knowledge that he asked her to conceal it she acknowledged that she did conceal it during her deposition yes she waffled a bit she unlawful herself with the first affidavit the she submitted a couple of years ago where she said with certainty i did not tell her but then she attempted to waffle again at summary judgment with the submission of an affidavit that said that she may have said she may have told her manager although in this is important she says i can't say with certainty so the district court didn't err in excluding that for two reasons first it doesn't say that she did tell peters it is speculative it says i think that i might have looking at documents years later but i can't say with any certainty she she clearly says that it also doesn't address the good faith basis that investigations relied on when it made its determination because they didn't have the benefit of anything that happened after the investigation and they just report didn't know what box set up was but meadow because it was in the open was perfectly ok even the fit of finch might have been doing exactly the same thing but that's a violation of policy is that right there's no evidence that what box was aware that finch was doing was the finch i'm talking box spin that oh i'm sorry one hand and finch on the other hand because it seemed either to me that finch was setting up all the underlings in order to get a better deal from him for himself but that doesn't seem to be the case or the finch was doing something really bad like getting kickbacks because word kickbacks does show up here in the briefing and that he ought to be indicted which he is not been so i'm very confused about the discrepancy between how can spin never do this on the on the up and up and finch can't there's no evidence in the record your honor that spinet it was allowed to do this on the up and up and he did it he went and set up that black car group fannie mae learned what black hawk was doing in terms of the fake emails and the thick phone numbers and all of that it eliminated those relationships it took the same action with respect to spinet as it did with respect to pinch scheme was contrary to what plaintiff has told you box in the testimony is clear from both spinet o m from box spinet who didn't tell box i'm going to use fake emails and fake phone numbers to hide my involvement in this he didn't tell him that had he told him that box would not have given any sort of approval he didn't tell box i'm going to get the am in access he didn't tell box the things that mortgage fraud investigations concluded were the bad things so there was no approval of what's been at it was doing just as there was no approval of what finch was doing and i ask you about the defamation claim because frankly i understand what you're saying about the arbitration preceding the law suit but it's not even binding arbitration right if it's not binding arbitration how can the fact that it occurred after the lawsuit was filed be dispositive against a defamation well first your honor the issue on the defamation the procedural issue as to twelve b three was waived by the claim by plaintiffs because it wasn't raised at the district court they didn't argue that that was the incorrect procedural approach contractual prerequisite a prerequisite to the arbitration being non binding in other words to you being able to reject the award if you are dissatisfied with it and go to court the procedural requirement was that you bring your claim in arbitration in a timely manner there is no dispute in the record warren has never argued has never contended and has never disputed she did not bring her claim in arbitration in a timely manner the defamation claim was raised in arbitration after the statute of limitations had expired as a result under the terms of the arbitration agreement she did not have the right to reject the arbiter non bindings so what's the big deal it's only non binding your honor if you follow the contractual prerequisites and the big deal is that the federal arbitration act was specifically adopted for the purpose of ensuring that arbitration agreements are enforced according to their terms a term of this arbitration agreement was that it arbitrator went to the merits but first we did raise this issue with the arbitrator and the arbitrator simply declined to rule on it he said that he wasn't deciding one way or the other so we remained an open question and it wasn't waived what the agreement says is that the arbitrator may be asked to rule on it that doesn't preclude that language doesn't preclude the court from ruling on it and further because the facts were undisputed because there was no argument from plaintiff that she had in fact  brought this defamation claim in a timely manner because of that the trial court could make that determination we couldn't do that in the first instance i'm sorry or we wouldn't be able to do that in the first instance we being this court yes if it had not been addressed at the trial court that's correct but the trial court did decide that the trial court in a ruling on the twelve b three motions specifically said yes it was doing that because the arbitration but you're not disputing that twelve b three isn't the proper vehicle we do believe it will be three is the proper vehicle your honor what we are saying is that if this woman were one this court doesn't need to decide whether it is or is not the proper vehicle because the claim was waived by pla arbitrator what i mean it's billiton is you who are more true than we do believe it is your honor because the facts are undisputed because there is no question as to whether or not that was raised originally with the with the arbitra arbitrate or in a timely manner we think it was something that the trial court could decide when but again i mean it's not been decided by the arbitrator he refused to decide it so i understand your argument about the necessity of it here in your view greenman and exhausting and all that but basically you're saying that although you don't dispute that the arbitrator had the issue he didn't decided and therefore he's out of court that she had knowledge is that she failed to bring the claim when we moved under twelve b three we gave the trial court the option we said your honor we said trial court we would like you to decide this because we think that it is undisputed and that it is appropriate for you to determine this if you think it is more appropriate to send it back to the arbitrator than you can do that the trial court because the facts are undisputed and because the arbitration agreement was clear determined that it had the ability to make that decision we believe this court should affirm but if the court believes that it should go back to arbitration then it should go back to arbitration which would be non binding and then what would happen the question would be whether the only question that would be presented if this were to go back to arbitration would be this case that the that the arbitration clint excuse me that the defamation claim was not valid on its merits i've never heard i've never heard of a law of the case being applied arbitrator twelve b three is not the right vehicle obviously it would have been better if i had cited the supreme court case that shows that there is their motion was ill considered we did oppose the motion we thought it was an ill taken motion of the time  the arbitrator is the one who gets to decide what he will and won't hear that there's not actually a stash of limitations defense because the defamation claim was brought within the one year statute limitation under texas law it just wasn't also brought in the exactly doesn't the arbitrator's decision sub to zoom timeliness exactly the arbitration agreement says the arbitrator gets to examine the scope of the agreement and whether or not considering he's done so so there's no point in sending it back to the motion never made any sense but obviously it's procedurally defective under the supreme court's guidance that he can do that with will