the main reason that we're here on appeal is that out we do not believe the district court reviewed the evidence in the manner that we we would request that you see ortiz werner enterprises case and determine that the case should be reviewed and mcdonnell douglas standard alone we did not argue the mcdonnell douglas standard we argued the evidence should be reviewed as a whole and that everything taken together should be reviewed as a whole and in doing that we believe the evidence clearly shows that ms matlock was discriminated against on the basis of her race the reason we say that is that ms matlock had been employed in the billing section and we energies for over twenty years prior to this particular supervisor ms richard taking over now ms mad like at that time had been a thirty six year veteran of we energies never had a disciplinary issue in regard to billing which saw as one of the lead people in the disk in the billing area was a go to person she was a customer lead specialist she had her own group that you advised and that she  answered questions for and help them with their billing issues in this particular matter what happened was ms richard became put into a section with will or no experience in the area how do you pronounce it rich did not find too much that she could do for the group she was intimidated by a mismatch lack stature by her knowledge by her experience by the fact that everyone gave her respect and it became really apparent that ms richer was not going to allow ms matlack to teach or how to do the job and to to answer questions regarding billing and to help people out and she became frustrated when it ok happening was after about a year of this in february of two thousand and thirteen ms richard beeston earth's twelve two thousand and twelve ms richard decides to discipline him as mad locks for an event that occurred the prior may now that that started the wheel the ball rolling down the hill and that what ends up happening as his mad locks eventually that discipline g rescinded but it doesn't get rescinded until august of two thousand and twelve six months later and in the interim ms rich a tries to other what eventually ends up happening though as and i want to make this clear is that ms matlock when she was transferred was transferred from her position in industrial billing as a customer lead specialists to volume billing she was placed in the center of the room between two managers an isolator from her prior group that relied on her to answer her questions they had the same title she was still a manager was the same title but without a group she had no group to weed she had the same title was not doing the same job duties she was actually doing the duties of a regular general pillar in the volume billing so her career at that point was stunning and she filed an internal simply were she had her own t v yet she had her own team in the industrial billing area done she got her own team no environ billing she was given the same job title but no team to lead she had nothing to do in regard to her same job duties she was in fact changed to the duties of a general pillar she found an internal discrimination complaint especially upon hearing them as richard referred to her with her new supervisor as a strong black black woman with that what it was doing yeah it was you see what happened was ms rich i believe based on the alpha dance had a problem with african american employees she had called another woman a strong black woman  two thousand and nine had a discrimination complaint filed against her for that reason all the women that ms matlock supervised that was part of her group an industrial billing recognized miss ritchie had a problem with matlock and didn't feel comfortable around african american employees and so by using the term strong they just looking at this and that there are a fair number of black and hispanic and other it's not a race exclusive business that's correct and maybe rick it doesn't and whether she doesn't like that or what but that that's what confused me when she goes to  i'm only on a guess here but she probably doesn't really much appreciate you getting any criticism from rick and rick it may say to your name should make is that how do i deal with her because she really is hard for me to deal with it would be one thing for her to say she's a strong willed person she's a strong person but the black supervisor and says that yes that confused me i mean that's normally not something you would say to a black supervisor unless there was a genuine question of how to deal with a strong black woman now that i'm only trying to do with here what they have to say that i'm really curious about from our perspective and the way we see the evidence is that there would have been no need for her to say strong black woman she could have just said she's a strong willed person she's a strong person but use the term black and she had problems in dealing with african american employees in the workplace and she had prior problems in dealing with african american ploys and moreover the only person she ever wrote up for billing problem was my client and this was not a system in which there were no standards as to when to write someone up as opposed to purposely counsel them my client was clearly targeted  rich my client had a target on her back because things that other people were not given discipline for my client was disciplined over and that was the why the internal complaint was filed for retaliation and that's when the retaliation occurred because after the internal complaint was filed further disciplinary actions then began  object to flee she was having some problems is that correct or not our position she was not having problems about overbilling and you know little money and all those who are there may have it she may have had her hand in some of that but the thing of it is other billers were also involved in those billing situations and they didn't get disciplined they didn't get a council nothing happened with them and they were involved in the same billing process making the same errors it was because the equipment in the field me please the court good afternoon judge roll their counsel i want to address some of the issues counsel raise and some of the issues in the decision to transfer heard a volume billing nominally missed hill or made the transfer decision but surely she did not make that decision without  it she did not so that's not in evidence what she said cording to the evidence as she characterize ms matlock as a strong black woman in that conversation and then there was alleged other conversation with a coworker where she asked how do you deal with strong black women so that's that's the evidence in the record there's no the i with respect to the question of why is it problematic to to refer to her as a strong black woman i would submit your honor that that statement even assuming it was made is not offensive there is nothing wrong with making reference to someone's race that's not what section one thousand one seeks to prohibit what section one thousand he won says you can't take action based upon it it doesn't require people to put blinders on and ignore the obvious differences between people and she certainly didn't convey any sort of hatred or dislike for anybody on the basis of their race so miss in fact this man a lot characterizes herself as a strong willed black woman so it's simply not evidence where did it where did she do that i thought i remembered seeing that well is not a bad attribute they are saying it why they are saying it something can be there even negative hate what i would say here is if anything the fact that first of all there are people of the same race to say they can who may not like other people of the same race same religion you cannot paint such a broad brush  will judge to the extent you disagree with me on that issue you don't even have to reach that issue because what was the first problem is that we don't even have materially adverse and point x in it's not actually she was transferred it was a lateral transfer she didn't lose any money no layoffs no suspension so this move to the violent billing was not something that's even actionable so rights laws are going to the civil rights laws are designed to deal with something frankly like that it doesn't result in any injury to a point disses company have a right to be a jury the injury was to her future hopes and there was a great deal of discussion an inquiry into whether the transfer was humiliating to her evidently her coworker thought that it was and right there in you have fact question as to whether this was  so she was a lead customer service special she's never been a supervisor in a supervisory position where union steward has some authority doesn't isn't that some representative or something like that i don't know it but that structure only curious because that's in a different venue but at the same don't think there is requirement but i do think it is possible to get certain benefits once you reach a surviving i'm saying you did so she's not up against the you have to leave your sixty five you have to leave the company correct and this a in the other thing i like to emphasize this wasn't a disciplinary decision this was a risk mitigation decision she was making errors and that's not contested at all well that's the key this is sort of the change in is time went on and she was making errors and some somebody came up with a hundred thousand dollars i don't know yet then again it was actually more than one hundred thousand dollars that she cost the company and again that's not disputing the  if you did in the record is your position that there were absolutely no errors on that list that they made up about her you know sort of after the fact list was compiled certainly after miss reisa learned about mismatched locks complained about and i would like to know what the record shows about a similar list being created for any employee that they created such a list for now in fact the evidence is it as mr miller came into the apartment she in fact directed that the supervisors into the apartment actually create the list for the other employees so she could get a sense of what kind of coaching counseling they had received in terms of how did you feel so were were respect to the race claim that that claim falls out because there's no material adverse action and likewise the retaliation feels on it on that basis the written warning that is she bases the retaliation claim on things a written warning in this list judge mannion head you have an opinion in the cursing case that's directly on point there there were two written warnings that the employee had been subject to and it was found that that was just made for purposes of assisting the company in upholding a personnel decision in the grievance process it wasn't in response is no evidence there was a response to the fact that she had made an internal complaint that whole process had started before she ever made an internal complaint and the idea that she would be subject to a written warning is hardly surprising when you look at the massive number of errors that she  committed that resulted in a company losing a lot of money it was the next step in a process that was hardly coming out of left field so i see that my time is is up i'm happy to address any of the questions the court ma forty years yes she's been a long term employee my question is what was how old was she at the time all this happened and her anticipation of promotion thank judge just a couple things and in rebuttal here the statement judge rover has has it exactly right the statement strong black woman may not be offensive on the surface but it clearly explains ms rich's mindset about ms matlock and other african americans that she had problems with she was intimidated by she told ms matlock part of the week before that the transfer occurred i'm intimidated by your stature i cannot be an effective manager in this group without with you being here now in regard to the customer lead specialists she had an io t group she was assigned that she supervised to the extent that they came to her for questions was transferred she never did get another i o t europe assigned to her to set in the room between two managers with management ordering her prior group not to come to her dad talk to her anymore