be referring to speak you see throughout this argument mrs musser was an employee of paul quinn college for a little over two years she st started out as an ringback independent contractor in the controller role through a company direct employee of paul quinn college while working there as the controller she began to uncover some things that she believed were fraudulent in that these things were being committed by her boss m to whether or not the district court error in its decision is yes as our brief illustrates and as i'm here to argue today the reason that the answer is yes is for the following reasons th articulated by the defendant is really not a legitimate reason there was a clear retaliatory motive for the terminations of miss muster we said it wasn't a legitimate reason it would be legitimate to say leave and had been on paid administrative leave so she was engaged in protected activity so that's why it's not a legitimate reason challenging only be ultimate terminations and in august of two thousand and fourteen yes you're on her and the reason why i believe for any of that you know what words saying basically is that when they said initially that they were going to terminate her for performance reasons back in two thousand and eleven they were aware at that time of her complaint however that decision was overturned and i believe in the record mr sorrels who was the president of paul quinn college at the time he stated that the board overturned that and the site on that in the record is if you'll give me one second yes and then they kept her and they continued to search for a new c f o at the same time that is correct and so when the board concluded their investigation mr musser was kept on paid administrative leave because the decision on the august the th two thousand and fourteen to proceed with the terminations that's an interesting question your honor so president sorrels testified that at st he says he made the decision then he goes through in his deposition and says well nobody made a decision but then he also goes back and says i spoke with john richards about the elimination and if you look in the board no john richards was through and tries to say well i did i think i did speak with this ship and she danced to mckinsey who had become the new chairman of the board but then he goes on to say well i think i mentioned it i don't know he might have said that i could do this and again i can give you those sites on the record there is one reason that's good you could say that you can terminate somebody because they're on leave i mean not because they're because they're your restructuring and one reason  about poor performance that might be colored by the fact there's been ongoing litigation in accusations of fraud what result what the result i think in one instance is that when there's all of these accusations going around the crux of our argument is that there is sufficient evidence to establish pretext and that this issue should have been submitted to a jury because there are a lot of disputes about the facts as to whether or not this was pretextual because again the decision on the poor performance it was overturned according to the president in his deposition testimony miss muster is out because of her complaint and so with pretext you have to have a buck for causation so we have that but for her complaint she had never been placed on leave i don't we don't know that the board actually said she didn't do poor performance we just know the board said you better not fire her right now this is too risky for the school because i mean that seems like a smart board decision if there's an ongoing brute dispute brewing to separate everybody and call a timeout well and i think some of the other key evidence to support that there was more to this so in the record oil cage nine hundred and eighty six this is the e mail between president sorrels and wins not only is he stating i'll happily wait any conflict there is conversation between those two and owens who's hopping mad for having been accused of fraud how is that does that establish pretext even if there is that it would do them it reason to terminate based on the restructuring i believe that it does because again there are in the record there are so many inconsistent statements because president sorrels also goes on to say the question was asked would the new c e o c f o or i think they changed the title to director of finance would that person be able to bring back rebecca musser and he said yes that would ultimately be their decision and he also said that the c f o slash director of finance they were going to be the ones to determine their staffing needs but  one of the key things here is that they never got a new c f o i mean i think it took three years for them to get one so sorrels made this decision on his own and then the other piece to this is that in this court's recent decision in garcia bursts is professional contract services incorporated the court said that with you have to import all proximity plus something else so our temporal proximity is to answer your question your honor i believe that even though there might have banned some discussion about her poor performance again the board said hey we're going to not do this we are they basically overturn the decision which is what sorrels testified to so she was never actually terminated until almost two years later and again the terminations occurred after the lawsuit against her for for the lawsuit not as for the the whole lawsuit situation well the telly ation for your original report or it's all one big scheme it's our believes that the defendants cannot rely on this whole poor performance issue because when you look at the language of her terminations letter all it says is we're terminating you because we've decided to do it eliminate the position in your paid administr is over that is when the terminations occurred and anything after that when the board over ruled determination on the poor performance that was it and another key piece to this is o testifies that there was some sort of calm confrontation between him and rebecca musser on november the ten november the th is when all these issues arose about her poor performance and he recommended termination the backing out of the financial fines and he admits interest testimony well yeah if that were to happen that was criminal activity and so after she confronts him about that and he admits there was some sort of confrontation although he does not go into the eleven but the lawsuit that was filed against her based on this claim started in two thousand and twelve and did not conclude until two thousand and fourteen to february to in august the league well up in just for clarification i believe the final judgment came in and april but then mr owens filed a motion for a new trial which i don't believe was scheduled to be heard until about august th two thousand and fourteen where i go back to cooper approximately i'm hearing about a confrontation shonar and again when she was left out on leave because we don't know exactly when the investigation indeed i believe mr sorrels testified maybe sometime and twelve early february february th is when mr owens filed his lawsuit so the testimony and the evidence in the record says the board decided to just keep her on leave and not to do anything when did she come when you look at fact that they kept her on leave not but for the complaint which is what initially put her on leave and she's staying home leave but for this lawsuit because the other issue with that lawsuit is that mr owens eventually brought an  c as a defendant in that lawsuit and p q c had to pay miss must service attorneys fees and then of course they have their own attorney's fees so right there is what is the clear retaliatory motive because now the her attorney's fees yes through their dno policy so once so once we look at the shifting reasons that they have offered one of the things again is that when you look at the language of the terminations letter all it states is that they terminated her based on the fact that they had decided to restructure the position but again none of these talks came about until she was out only president that the plaintiff was appealing on the no discriminatory or discriminatory reason and on pretext but their brief only addresses pretext i'd also like to start with the legitimate nondiscriminatory reason and know your honor they do not they do not and here is why the decision to terminate the plaintiff was made prior to her complaint whether you take that complaint as november th when she sends a one sentence e mail that says we need to back out of in  parallel in course and there is proof of that in the records and you're going to rely on the performance issue we're relying on both because they were proceeding on a parallel truck now the latter said yes the restructuring but then in  deposition i think it was sorrell said well it was both that's correct in your own peril because in early november the record is clear it is uncontroverted that sends presents or wrote a memo where he says we are trying to find a new c f o i would like to to let her go at the end of the year but her performance is so bad that we're going to have to consider doing it earlier that is in the record and that participated in interviews with the oppose she knew this reward was coming presidents are all testified uncontradicted my goal was to let the new person come in and make a decision as to what he or she would deal whether they wanted to control or they didn't want owens knows that musters been trying to talk to the president so ro about owens is a legit fraudulent conduct heated in trying to get in a meeting with him that whole owens does not know that he was asked of his deposition for she was asked if she told him in her deposition and she said no he did not know that he had no clue that she's been trying to get in to see the president about it urgent matter that is correct even though some evidence that they alleged that there they allege that but i have not seen any evidence in the record that the two said that they were best friends or that they spent a lot of time outside of work together no time that she was out on leave or does any one doing her work was anyone selling that position or was the part of the restructuring that if she was gone for two years and nobody did that work well maybe no one needs to have the position so your honor that was contemplated by mr o before miss muster ever complained and the short answer is that the college had been utilizing an accounting firm called he crashes and he cratchit had been doing most of musters work that was part of her performance issues that are well documented in the record so when she went out on her leave some of the job responsibilities were smain teen by the crash it and as the record states some were simply absorbed internally so it was not all outsourced to me cratchit as plaintiff contends that is not the case and is not with the records determination decision was made by presidents or oh he testified he did not need board authority to do that so he did instruct miss pryse who was at that time his cabinet leader to send a letter i would also note there that plaintiff's counsel ha said and in their briefing has also stated that that time anation decision was revoked by the board i would ask the court to take a very careful look at that testimony that cited because it the record nine hundred and ninety four right after what the plaintiff cites mr bob since he was not working at the college either neither of them was so with respect to the to the pretext argument they've made it four points that i would like to briefly address number one when the plaintiff has argued that because she was on leave it was because of this it was because of a protected activity and her position was replaced that holds no weight as the court that was if there is a reorganization even if you engage in protected activity if you have a legitimate reason you have a reason unless there is some other evidence a pretext which there is not here number twenty one of the arguments well that is what that is what this court said in garcia was you need close temporal proximity and significant evidence of protests they have put forth for arguments or significant evidence of pretext and and all quinn does not believe they meet that standard by any  any of those arguments sure so their nd argument in their brief is present so what was the st the st one was that the position was eliminated because the duties were assigned to others while she their argument number two is that presidents roles explanation of a reorganization is unworthy of crean's i would submit to the court that it is not within the th circuit's preview of the purview excuse me to make a credibility call but if the court decided that it wanted it's a credibility issue you're right it's not within our purview we have it in your even jury so that's not a good thing if you think there's a credible well i guess what let me just try to understand that are you saying that their argument is  or you say they want to put words d in your mouth are you saying well there's no evidence contravening his credibility is with us here is the evidence or is undermine his credibility that's correct we're not arguing that there's there's no credibility that's the plaintiff's argument and what we're saying is that it's an argument that should even be considered by the court here without rebuttal will ask them you know where's the evidence that would create a jury so three number three presidents are all had a retaliatory motive again there is no evidence that he and mr owens were that is the use and somehow conspiring to get rid of miss musser the fact that he's in a lawsuit with the college  factors right so i would also know there is no evidence that the same attorney who was representing mr owens for a very brief period of time was the same attorney who made the decision or who consulted with presidents or oh that's not in the record  legal advice and that i did i can't say if you did or didn't though the evidence in the record is that at attorney gave advice to presidents around that's all it says i would also know it as a reminder that my client paid her bills not only for the lawsuit where mr owen sues her but for counter claims bought paid all of that through the d n o insurance that is correct they also hired an outside law firm to do an extensive investigation into the arguments that the counsel made was they can't rely on performance well if that is what the court believes then you can't come back and use that as a sword against me and say well now you've got shifting reasons if they're telling me that the person that i can't use performance because the terminations decision was revoked which it wasn't but assume it was then you're going to come to the again and say well that you've got a shifting reason because you're saying a retort you can't have it both ways we have always contended th performance in the reorganization proceeded on parallel lines that's what the evidence shows and that's what we have argued consistently and under control in his law in this circuit there's got to be some evidence or some manifestation of fraud now plaintiff's counsel said well mr owens testify that he understood if it were done incorrectly it might be fraud what's also in the record is that mr owens or excuse me miss muster testified she never used the words fraud with him ever until the november th memo and she also testified she had no idea what was in his mind when he received the e mail it could have been a wrong entr it could have been a mathematical error on an voice simply saying hey we need to back out of a voice that doesn't tell me anything about fraud you're also saying i think what i was following up on was he said there's evidence of poor performance in the record is there evidence prior to the november parents and responding to complaints that their kind of evidence is that kind of that you see that kind of evidence plus presence or rolls own observations saying she wasn't following instructions she wasn't getting things done there were signs that weren't completed those kinds of things letter and not talked about her or her performance young i don't know if it would have been easier i think that there probably was a disconnect between the person who made the decision and the person writing the letter but the performance never went away and that combination was never revoked the plaintiff was never told they were revoking that performance then your good it never happened she testified she wasn't told it was it was revoked presidents are all said i never told her it was mean i guess i guess the question for us is with that evidence create a fact issue but to protect it isn't that the ultimate question well i think it is your honor but there's a difference between a fact dispute and a fact disagreement was so where is the where is the controversy the evidence to say that mr owens was lying or presidents are always line there isn't any of that this is we don't like what the facts say so we're going to disagree with them point to the record and show where there is an actual factual discrepancy that would be different but we don't have that here your honor i would like to mention that i do believe that the district court could have easily dispense with this case on the statute of limitations argument it's a three year statute brief yes it is yes it is in fact it was it was our it was our opening argument below and it is also in our briefing here so three or statute she complains whatever date you your honors if i may i'd like to point out a few of the things that counsel said so the st thing that she talks about was who got it sorrels when he made the decision to eliminate that he said that you know he just spoke with an attorney he actually names on page forty eight in the record he spoke with john about illumination of the position and he also states that he spoke with he thinks he might have spoken with the ship mckinsey who was the new chairman of the board but he doesn't recall if he said but most of everything that he talked about determining the elimination he spoke with john which john is the same lawyer who believed it was a great idea to represent a former employee in suing a current employee the other thing i would like to point out is that yes there was a law firm that did help with the investigation of the claims about the law firm was owed by one of the board member so she talks about they spend extensive money who also like to point out when we talk about the retaliation issue if you will allow i would like to read something to you after mr sorrels received the e mail from work and one states also i would suggest you finalize her termination and eighty six says i'm happy to waive any conflict of interest for john and he says i don't forsee us getting any money back and i'm not sure what the board is thinking in the issue of dealing with rebecca my goal is to point out that she was fired from the colleges  anyway and i'm letting that stand and then he goes on to say i think people want to give her some sort of package but i'm going to say that the six weeks that she was paid and did nothing is packaged enough and she shouldn't even get back up so there was a retaliatory motive whether again he did not know what the board's plans were with miss musser so he wanted to get rid of her in the board stop that decision when he also might leave that decided to get rid of her in two thousand and fourteen after making statements that oh i did not  make this decision or yes i talked with john we just decided to eliminate this he gave very different reasons for why he ultimately made the decision to try to hide behind i didn't make this decision but then goes back and says that he did so he wanted her gone that was evident one wanted her gone even after one was no longer employed there he said in the e mail see if you need to go ahead and finish on terminations they wanted her gone by any means necessary and i'd also like to point out that one of the things that was discussed too was about the we don't know if anyone here is a liar i believe is what counts allude to we don't know if they were telling in iraq as i mean in th it made it that he did some fraudulent things he admitted to lying to auditors in recreating financial forms and also one of the things he admitted it was that he was upset with muster because she had made some comment so again this all seems that he did things because he was upset with her he even goes on to admit that even though there were these performance issues allegedly that he never wrote her off for the very st time until november th of two thousand and eleven for any sort of performance issues and ironically that is the day after he says that there was some sort of confrontation between the two so again for the we don't believe that there was any sort of legitimate reason thank you