by northwest airlines on september twenty eighth two thousand and one approximately two weeks after the tragic events of nine eleven of the six candidates for layoff in his particular job title mr graham i was the only one who was foreign born he was the only one who spoke with the accent a matter that had been a subject of commentary for him at northwest for several years he was from a ethiopia which is largely muslim approximately forty percent muslim our country probably experienced a greater fear of people from abroad immediately after nine they both arrived out of a summary judgment of the dismissal or a summary judgment dismissing the entire case his the first issue is whether the court ferritin in holding  origin however the other issue on appeal is whether he showed pretext adequately i'm puzzled by your comment that he's a stellar performer and i had the impression he had the lowest rating of all o showing a pretext it's on the face of the e c they changed it they say they just did it to compare apples to apples well that's not the testimony below but testimony below was that ms jones that she changed it because she thought there was a mathematical error in it that appraisal had been done and samples were missing she did it on the basis that you should have one hundred percent if you're dealing with the whole well but i don't have a reason for her to look issue there was a reason but you have totally different matrices he used for comparison out of his hair but in seattle so you know you can say forms were different or the courts here the forms were different the criteria were different in the gold portion of the assessment but waiting for different factors were different we don't know whether there was any relationship between the goals set for the team now but assistant managers in the goal set in seattle what the rating is the moment you go beyond what the performance appraisal itself shows and you begin to pick and choose numbers as ms jones not only did with this particular employer but with another and practice is to look at start round up or down in comparing the court competent in combining the core competency and the goal and you take the overall flannery's but i don't i don't see where that's going to be relevant to you he's white and your clients black and it looks like she makes mistakes and for everybody regardless of the background does that really help you any to show pretax i think it does for a number of reasons first of all we have more of them that we have tossed and comments on his act i understand we can go to another issue but i just and i'll get to that but this one i didn't quite understand the argument because she also made mistakes mathematical mistakes with flannery that somehow that is a part of the pretext of the argument is simply this that they claim northwest that they used the same procedure for lay off she's white house girl mine for layoffs and that's the statement but if you look at what they actually did i didn't really think that if you do the math it shows that she had one procedure poor math for a black man and a white man that maybe she's just a poor mathematician i'm not sure how that pushes the pretext issue well you know both of that it's quite arty was a sales performance manager she was in a different job  suppose it's hard to see the that she's prejudiced against african americans when she's an african american so i suppose it really gets down to the accent issue well now this is an accident issue i'm dealing with origin place of origin is circuit has gone farther and told us and johnson versus being a corporation that there shouldn't even be an inference that people of one group won't discriminate against people of that group of the same group of the same group right so men to go back to the ac largely one group or stock of people then the national origin and have histories going to be the same but that's not always the case and when it's a pure national origin issue it's not a one thousand nine hundred one coin ok that's helpful was parking on something that couldn't change beyond that on summary judgment and if there is an inference as to whether this is a helpful or a beneficial comment as opposed to a negative one you draw the inference in favor of the non performance it's a legitimate thing to take account of so they just said to him the worst thing that they said to him was your exit is i'm eating your performance or i can't give you an exact quote that's pretty important isn't it you know i mean this is your this is what make difficult to understand mr so the moment she's saying you know this is making it hard for you to give a presentation you're being understood you have to assume given the summary judgment standard that she's his performance or make it harder for him to be understood then any comment beyond that is in from a simple it's assumed that he would be even better if he took a grammar course well that that was the issue communication oral communication suppose you could be even better there's nothing wrong with an employer suggesting improvements in different areas is or where it's based on a that we're trying that communication skills and in fact in in april in may when he said he said that she was talking about the accent thing in june she gave him an increased rating in communication skills well it may have been a better one than he had before but it wasn't up to where he should have been lost all of these are very subjective criteria and you have to assume sort of breaks the training and i suppose that's an issue that you need to consider because in april he talked edberg in april and may there was the accent problem and then june twenty eighth he mentioned that she had bias and the e mail it was after that that she got the jones gave him a higher communication skill and it was asked and asked that she was involved with a graduation gift and compliment just want to have you respond to that you are of these issues occurring after that is that you can hire communication skills they congratulate him on his on his achieving his graduation why wouldn't that be dissipate the probability or possibility of really a bias well first of all that the graduation thing you know she chipped g m for it was like a toy dog i think it was and go along with some of the other managers or all the other managers i testified that he gave them all the saying no thank you for your words of appreciation or your kind words or something and all the same gift that's the first thing the second thing again you know if there was a slight improvement in  communications thing afterwards if he was starting from a disadvantage it really doesn't cure the problem i don't think that he has to show that his managers were complete ogres in order to  prevail on either of his claims nor does he have to show that they you know metaphorically florida every day i mean that's just not human nature all he has to show is that those and enough of the disadvantages that made a difference again if you look at all of those figures the ratings of all stats in p m s were very very close and it doesn't really take very very much i don't think to really about is that mr graham i was unhappy he was disappointed he was angry with the fact that he was one of the two people selected for layoff after september eleventh and he's trying to translate those emotions performance review the fact the matter is that she got four reviews from felicia jones three of them including the last one which is the only relevant one she gave him with three which means he was meeting expectations and standards other eight pm scott threes as well mr gleason's he should've gotten the five no one got a five a few people got a four he was not the only person who she made constructive comments about developing their oral and written communication skills i mean these people are managing that's a very logical thing to suggest that doesn't anything to do with national origin and origin doesn't present any sort of animists and none of the case  industry is upside down and cetera she's tasked with reducing her management staff by two so what she going to do it by force of temporal out and she wouldn't terminate anyone because they're all their performance is generally fine but she has to get rid of two people so she says ok i'm going to look at the most recent performance review why should i do that because number one it's the only performance review that all the a p m s have since the job itself changed in november of two thousand number two because some of the a p s didn't have prior reviews number three in april of that year when crystal yellows to  cock asian had not suit the company and was not from ethiopia had been terminated in an economical they had slipped back to the most recent performance review so it was entirely logical thing to do in that case with determine it other than to get her judgement to go to the raw scores and the raw scores do differentiate in other words someone could have a three point three three that rounds down or three point one four that rounds up and so there are some differences there  when they were deviating from standard practice but trust pacman correctly found that they weren't there's nothing in the record to suggest that previous layoffs and been done in some sort of different manner in the us and the fact that the performance reviews were done using and that gets you to your overall performance rating the way it was done for performance evaluation purposes the overall comp and seagram sort of competency rating was rounded to the nearest half point that there is a and incorrect number on mr speed and skis go rating it sets report for five when it's actually three point two five but it's a distinction without a difference because the fact the matter is that when you do what miss jones did you end up in the same place mr get on skis competency rating was higher than the three point five was rounded down this flaherty's was lower and was rounded  poll ratings this clarity was three point three five this for students was three to five although the number was on there was three four five the point is if you take you take those and you calculate it out they both ended up with a three point five rounded overall score even if you know with that transposition numbers correct ok so you end up the same place that you both had the three point five rounded overall score so she goes back to the raw scores and you take his over his rar competency score which i believe is three five five kids goal score three to five you calculate  it same for her he still has the higher ross score so it doesn't change anything you go to the a p ams and it's exactly the same analysis you take the raw score the raw score you end up with the raw score if she took that ross course for each and every category they added up to one hundred percent she divided she got the wrong number with this kline it is true that in tampa the overall round of score that was put on the front of the paper was done differently they only included ninety percent and include that ten percent it was missed jones's judgment that the fair thing to do since she was take she wasn't taking what was on the front page of the seattle people she w maker she gets to decide how to do it this year from i might have done it differently in a way where he would've stayed someone else would have gone but that's legally irrelevant she decided how she wanted to do it and she did it in a way that isn't up with someone else the difficulty that judge paez points out if you were defending this case after a trial your argument would be very persuasive but look what happens down in the district court on this very issue second and we've been very clear than in these cases that burden is not very hard and she is here telling us that she's the arguments one separately do not establish by a preponderance of the evidence that northwest reasons for terminating were were protected by a preponderance of the evidence and then over on deciding on the accent fourth the court finds little w discriminatory reason is more likely motivated by the employer or the employer's profit explanation these are all the comments we usually find after she's been decided and i'm just struck  about giving little weight to the accent issue but this is this doesn't look like a summary judgment response can you tell us can you tell us how we're to end while of what i've got you on the line the other that male all that happened is someone had raised an issue about whether mr guevara i was talking about something you can see miss jones in minneapolis asked someone to look into it the retaliation claim and whether or not this is distinct from the lawsuit which has the nineteen month gap that this was three months before in this way are the issues whether that was retaliation in his comment doesn't focus just on the particular issue since i do not find your approach moral to be free from violence so it seems to me there's an accusation there that could be interpreted to mean your approach is poor or meaning and you've got to look at i think the courts do look at this in context what he's trying to do is bridge that gap for tally a show trying to show some sort of pattern of intactness i'm like in the in the  it was a logical way to deal with the fact that he wouldn't have done it that way it's neither here nor there he would be arguing the opposite if she had used it that was all the lower score that he'd be saying well that's just she did it to compare apples to apples she thought it was a mistake there's no evidence of the time sure there's no evidence of animists there's nothing in this record relating to race at a national origin and there are these two alleged comments and nothing else but a minute and a half left on the june twenty eighth two thousand and one e mail following that e mail mr graham i did talk with mr jones and again complained to her in the context of that you know about her comments on his accent so there was very specific race or national origin and contact to then on the pattern of antagonism there was a period in early two thousand and one when mr grimm eyes dean was taken away and he went for two months without any job duties whatsoever and he went to miss jones and said i have nothing to do but stare at my computer screen and she said vassell all we want you to do right now now if that is an antagonism toward a motivated employee i don't know what he asked prior to that within a month or two after the resolution of the first