that she suffered from a genetic condition called be r c a two which necessitated a series of surgeries in order to prevent her from from suffering from cancers so in late and thirteen she sought a medical leave for the st of these surgeries which was granted and she was on leave from her position from mid january to mid may of that year later that year she needed a follow up surgery in order to follow up on some of the procedures that she had had and she requested that leave in july of two thousand and fourteen and she was out for a little more than a little less than a month between july and august  so she requested a rd leave which would have taken place in january or early twenty six be sure and what did that lead to in october two thousand and fifteen having told her supervisor a few weeks earlier that she was going to be formally taken these needed medical leaves this it was began before even met her while she was on leave in two thousand and fourteen when he questioned st of all her excessive absenteeism and heat when she sought a nd leave later in two thousand and fourteen he referred to that leave as unfortunate and he told her supervisor or intro personnel in any event in her supervisor that they would have to be carefully evaluating her performance also during this time he questioned her high employee rating even though he had never even not yet worked with her he falsely claimed that it was common for him to how is that showing i mean it wasn't fortunate she's going to be out again well there aren't what that's certainly one inference that you've drawn from your mother however at this stage of the summary judgment stage the view of the evidence in the language of this court has to be in the most hospitable light to ms o'rourke and i suggest that get given mr howard's other statements and other approaches to her or treatment of her it's certainly capable of supporting an that he saw the lead as unfortunate because she was going to be out and because he didn't want to have an employee out whom he had already questioned about excessive absenteeism and and that taken together with the fact that he didn't question the performance of any other employees he or i should say he didn't question the reviews of any other employees or at least none that he could recall of the time that he was deposed might well but what the context of the excessive absenteeism statement could you remind me what the record shows about the statement where he questioned her excessive absenteeism i thought that's not the language of the employer who says that supervisor i thought that was the language of counsel describing what he says that wrong i'm not into that clearly my memory or on my my recollection is that he questioned her absences from work and my certainly called you did call the human fortunate and he he gently said it was unfortunate she wouldn't be there so that he could review her performance it's the same necessarily is the fact that he otherwise questioned her absenteeism so i'm just think that's pretty critical piece of evidence for you to be helpful to know what what that evidence actually shows i write that down before my re so the other the other thing that he did and i think this is an important point the other thing that he did is he created a new position for her so she's she's had her st leave in two thousand and fourteen she's had and fourteen and towards the end of two thousand and fourteen he now creates a new position for her within the same unit but a new position she goes from being director of purchasing and planning to director of strategic sourcing within a year he decides that he needs to eliminate that position and his explanation for that and his deposition is that the position made no sense so one could say that we can excuse me counseled the director of purchasing position continued to be filled by someone else my understanding is that he changed the position he created a new position as director of slawson encompassed over included her previous purchasing yes yes it did and then and then but it's remaining thank you and then he says in deposition when explaining why within a few months i mean it would be well within a year he in in the past and hold and whether he had engaged in it in the past or not this particular episode where he creates this position for her after having after having been concerned about her body and having described him as unfortunate and having told her supervisor that she needed to keep an eye on her and watch her closely he creates a position for her and then within ten months eliminates the position as a basis for terminating  saying that the position made him into the position that he created for her so he's put her into a position that makes no sense and certainly that supports the inference that he did that for purposes certainly good to read and a jury could still find and i think what the judge did here and what we have to be cautious about is personally all these little these pieces of evidence and the little segments and treating each of them in the very independently have to support have to support a conclusion that there's a causal connection here they're not sure if she had a if she had a heart attack and he told her boss that was unfortunate would you suggest that a jury could draw an inference from that that he was against people who had there's the telling that she needs to be closely monitored there's the blaming her for inventory problems that have occurred when she was on leave there's the falsely or inaccurately blaming her for an employee who left who he said who he initially held against absenteeism reference that you refer to you is on page one to page twenty one of mary messier's deposition testimony and you are one hundred percent right that was based on the characterization of a would say concerned he asked but and then it was never picked up on again so there is nothing in the record to suggest other than counsel characterization that that mr howard made any sort of reference about exce but there's no reason to be concerned about how he did it given how difficult martin was and none the less even after being informed about that he seems that they're on this idea that somehow over the war is the cause of early departure about the sourcing function and certainly on mr martin's departure i think it would be a greater concern if ms a mark was terminated for performance reasons there is nothing on the record to suggest that anything critical look at all of the areas under his supervision and made a bunch of changes to the idea that he created this position the only route if it actually is not supported by the record ten months had passed he was trying to make the resources that he had available to work and come home after getting out of it an opportunity to see if it would be successful it was of staying around and then there was i thought of the discussion about well maybe we should people on and try out and that's rules that wrong now that's not that's not consistent with the record you're on there her position was when we say downgraded let's hear very clear she was downgraded from a five which is exceeds expectations to a four wire which is always meet expectations sometimes it seems expectations so her speculation that she went from having an excellent record to being viewed as poor is is not consistent with the record here have to me manages performance it was still a very good rating she earned  there is a question when he restructured and they were it was a lower level position available then yes she was considered for that position and i and that offered that position to she was offered the points st of all in response to the question about excessive absence of excessive absenteeism i will do my sister's recollection the record on that in terms of how they came up with the deposition i think it's interesting the argument that he didn't know what her condition was what inference do we draw from his statement about unfortunate it if he didn't know what her condition was i think that supports the inference that he thought it was unfortunate  leave not that it was unfortunate that she had this particular condition there were a few other points that i wanted to i wanted to mention i did make reference in the brief in the reply brief to the privilege law which the trial judge ignored in his agreement of summary judgment i would suggest that the privilege log which appears at pages forty four dollars through forty nine dollars of the appendix demonstrates that at about the time that this position was being eliminated and that is it was seeking her additional we they were aware that there was an f l f m l a issue here there is now we don't have the contents of these communications because defense has chosen not to share them with us as is their as made within tiffany at least that's what we can infer from the privilege one that howard may have may have thought he was going to do something frankly i'd say howard made that decision as early as june wary of two thousand and fourteen when he created discussions about ethanol way that there were that the decision had not finally been made because it was still an ongoing conversation with him to fit in and in fact they did make an offer of another position and the offer of the other position i suggest again support inference that we were asking you to draw on that we have the trial judge originally to draw this was a phony position it had never existed before it had not gone through payroll i think the testimony was that nobody knew where the money to fund it was going to come from because it wasn't anything that existed they met when she didn't accept it when mr worked in the except that they didn't advertise it and they didn't fill it so clearly it was a pretext in order to soften the notion of what they were doing to her and i would suggest when you take all of those in from for this remembering that a brick is not a wall is because mccormack said when you take all those inferences as you have said you must most hospitabl that it's wrong to agree it was wrong to grant summary judgment here a jury should be permitted to consider this evidence and draw what inferences counsel can persuade it to draw it is not a question for the judge this is a question for a jury