there is no dispute that her supervisor nicole martin didn't become a supervisor told april two thousand pleadings it wasn't in any of the deposition testimony that we took it just mysteriously appeared when they were filing for summary judgment thus we use the sham affidavit i understand that is typically and i mentioned that in the in the briefing that  days are typically you're arguing to make a claim you don't but here they are going to make a defense because our argument our prior and it was even if we go through all these criteria they are subjective and we can show you why these subjective criteria should not have been a basis to select my witness had to be confused or they need a clear clarity to the questions or three they had back then you have to show up and three you have to show that there is an actual contradiction here there's no question that there's a contradiction and there is no explanation or say she didn't understand my questions in fact i close every deposition by saying is there anything that you testified to or any questions you asked that you did not understand answers and so for them to then come forward with new criteria that there's no way for us to re disclosed to us specific conversations and i knew her testimony was specifically i don't recall anything specific other than we talked about some of the only does it matter here that the affidavits in question the the s no here's the material genuine issue of material fact here you can just ignore evidence potentially but the movement movement has or at least give it in a light most favorable to the other parties so as to make a difference at this is just a different procedural that it's about fundamental error we took the time to depose her we took the time to go through all of the criteria that that lady of pacific said that they used for this we asked her if there was anything else any other documents the notes there are no notes of the meeting there are no recordings of the meetings there are no additional e mails that say these are the criteria that we considered and then to come forward evidence that you have not disclosed i would say the theory what's good for the goose should be good for the gander and if i through going and getting other people to tell us what did this really happen like when they say well we consider the fact that she didn't know how to use their three communications systems or she only knew how to use one and then we go back in the records show and she actually knew how to use two of the three wall why did you offer her a chance or training to do the rd would have been my question in the deposition because you know what they did you had six people in kansas city and you had people in minnesota they moved t communication system but you didn't give her a chance to learn the rd one and you're saying well because she doesn't know all three that's a reason to not to terminate her employment and so how is it that they can do that and we clearly know the gym afterwards and i mentioned  the court and in my problem with that is the court specifically relied on we briefed the issue we told them the problems with it and then we still said here's what we have but this still isn't fair and it's fundamentally prejudicial read a lot of them to bring  and and i'm like ok the objective criteria but those be objective criteria was supposedly training in the free communication language and knowledge of the areas that were added to casey well we can see by the records that they didn't go check her because those things were never discussed they get they had a matrix none of these things that they added to the affidavit were in the matrix the only things that they considered at least a quarter make it was performance management program efficiency ratings discipline attendance and other room and when we looked at thirteen it's like wait a minute you're listing her because she had gone on and leave at the start of february so she went on definitely she applied for and went out on the th mrs marty is notified so six days later seven days later they didn't have this meeting to decide who they're going to come in and so six days after her going be notified this is listed on the spreadsheet and that's one of the considerations that they use when they're making the determination decision and so for them to come up with new criteria that we could have deposed them on gotten evidence i don't think should be considered i think it's just recollect to refresh my recollection how then can she signed this very detailed affidavit about what actually happened in the meeting i don't know how could she have reviewed documents could she of familiarized herself with things that refresh your recollection is it was there anything she could use to redress her recollection the answer was no and i gave her the spreadsheets for the meeting so there's no argument that the documents that they told us they relied on she had and so i can't i can't fight a fight with my have tied behind my back and if you're going to use these affidavits you shouldn't you should prepare them for the depositions and have been truthful enough because that's what they swear to they're going to provide complete and truthful answer well what if we just disregard the affidavits and didn't didn't perkins already give another other reasons why they didn't why your client was laid off she said perkins i thought testified that your client did this bitter war the testimony show that those things were so subjective that one or some of the people of the room did know the people they were talking about to the efficiency ratings but my client has a specific letter from the in january t evidence to show that it actually happened two thousand and fourteen they were also like i said the guys who were in minneapolis the people that were kansas city different supervisors but they were given a fish it's a test and it was a random you have to take this efficiency test and the supervisors have to fail so many people there was also testimony that supervisors were passing people for a test they didn't take so how is that something that you can say is objective me and that is the sworn testimony thus you go make up minneapolis and says this is not a place a woman should work with in a lot of my clients to me and the argument there is we can show you some evidence that there was an animal as towards her being a woman that works in that facility we can show that she made complaints about safety and other things to ms martin and so what we're saying is all the number of them is really right that it has to be one of the one hundred factors that we're you we think we've met that we think that we should get a properly nd the district court properly reviewed the record in this case against the governing legal standards and correctly held that miss buttons evidence fell short of a stablish in a prime of case of gender discrimination under the missouri human rights review applies to the issue that counsel just raised the fact is that the district court did not air in considering the decorations because they do not contradict fired up assistant testimony i'd also point out that it is true the sham affidavit rule is typically and only seen on in so far as the non movement trying to create a fact issue to avoid summary judgment so it's also different in that regard but the court may not even reach that they can resolve  manufacture a contradiction by taking one small portion of miss martha's deposition testimony ms button fails however to include another portion of her testimony that directly relates to the very issues that she further explained and we talked about the desks and what they were qualified on as biden's counsel asked her one question what that meant to be qualified on and she further explained so which desk they were qualified at so brad was iowa missouri qualification randa was biden was kansas city what desk they were qualified on which one they were working or were able to work on on their own the declaration then explains what that means no further questions are ask miss martha but the declaration explains what a desk qualification means and it included three subdivisions iowa missouri kansas city each of those subdivisions had territories under each of those divisions what happened in the community communication those you heard council speak to what employees were qualified there are three different communication modes each of these dispatchers the factors are like air traffic controllers when there was sponsible for the movement of trains in all these various territories and obviously these territories are very different in and amongst each other and they use different and require training and experience on communication modes and that was the other point  are related to her desk qualification in the three divisions there's no contradiction these are the elaborations even if you were to apply the sham affidavit rule it is not a sham affidavit where the testimony is intended and clarifies and elaborates on the information provided and that is exactly what that declaration does it's not contradictory it's not a sham misbegotten then takes issue with a single paragraph and miss perkins declaration i think that's an important point to make to the extent the district court relied on ms perkins declaration the majority of the declaration relates to who had taken f m l a various h r related matters the only point that plane of takes issue with i paragraph twelve of her declaration where she spoke to recollection of discussions at the ritz meeting where they spoke of a concern with miss button not being able to handle this larger territory post ri that's the paragraph at issue and even if the court had concern with that paragraph it's immaterial because that same concern and that same testimony exists many other places in the record miss amanda cobb spoke to it and her declaration so to judge cauldrons point about could any problem be disregarded yes because there is other evidence about that point there was also nothing suspect or suspicious about ms perkins amended declaration counsel didn't touch on that it's in the briefs but i just want to briefly point out she merely corrected a factual error on a completely collateral and different issue and it doesn't change miss perkins declaration on that point let me then move over to the gender discrimination claim miss button concedes she must make a heightened additional showing of gender discrimination here because it is a riff case and she has not done so she's brought three arguments before the court  evidence as all explained nd she argues that similarly situated male employees are treated better and rd that c p stated reasons have substantially changed over time the district court properly reviewed each of these arguments that were all raised direct supervisor and she was not a decision maker in the ref that is by definition a stray remark and it fails legally and it does not constitute direct evidence and the district court was absolutely correct in making that bold and th district court was further correct in rejecting that remark in so far as it could form the basis of inference the prime aphasia case or this additional argument that mr peterson was closely involved in the decision making peterson was not specifically consider these undisputed facts it's undisputed that ms pearson was not present she wasn't at the ref meeting in february of two thousand and sixteen it's undisputed there's no record evidence that mr pierson provided was a she was a manager and she was a dispatch chief dispatcher i believe it was in minneapolis so she was in minneapolis and she happened to be in kansas city for a couple weeks in early february and that was where ms button interacted with her earlier it provided the data of all sixteen operations supervisors but it there's no record evidence that she was peters and there's no evidence that she provided any comments to that there is no evidence of her active involvement in that session and when you particularly compare the cases the plaintiff relies on for the proposition of this being any kind of relation to the decision it there just the records are not comparable the cases that are cited involve supervisors who actively participated in the meeting were present at the discharge meeting who actually had some participation and there's simply no evidence of that here on this record likewise on similarly situated requirement the district court did not air here as well the district court did not improperly weigh evidence against mr broughton rather the judge properly applied the governing legal standard against the record fact as is well established the legal standard for similarly situated is a rigorous one and it requires similarity to be shown in all material respects and here the district court reviewed that record properly and found the evidence insufficient as a legal matter consider these undisputed facts on the record the spreadsheet that was used in the ref meeting shows that miss button did not have a comparable efficiency rating to other opposite providers in fact her efficiency rating failure rate was one thousand percent far and away more than any other employee male or female that was reviewed in that meeting also undisputed miss bottoms disciplinary record she had two disciplinary infractions in the two year look he had more experience in the territories i spoke of regarding the iowa missouri fall vacations they were he had more territory follow patients and the plaintiff and therefore was not similarly situated in their respective  that's not improperly weighing the evidence by the court to the contrary those are undisputed record facts then when that when reviewed against the rigorous analysis for the similarly situated requirement simply fail as a matter of law briefly the have not changed button miss button was discharged because of the rift it's always been there if the reasons that reason has never wavered the case is that require a substantial change over time in looking at those cases as compared to this record work when scheduled then in litigation the employer said the reason for just charges was due to her performance she lied to a manager or a customer complaints and she was insubordinate you cannot reconcile those two separate reason together they're directly contradictory this button here has no such evidence the riff has and always has been the reason for the discharge and therefore there is no contradiction in those reasons i have two minutes left i just briefly want to touch on the f m for closing in and out of the following room really quickly before you get before you jump into it does the heightened standard from holly in some of these other cases upon apply in the f m l a context that is i don't know that we've extended their i'm not sure it matters but i'm curious what your response to that is you know your honor i don't know that i can say that for certain whether they have or not what i can say is that the f m l a retaliation claim what is it is an intentional retaliation requirement so to the extent the missouri human rights and requested all the a family she requested in two thousand and sixteen was from february th to march th she returned to work she got all her benefits the request was granted she returned to work and i met she recovered no loss of two thousand and ten ms botton again received and all the f m l a that she requested at the time without repercussion her these reasons we submit the district court's thorough and comprehensive decision should be affirmed in all used all your time it will give you a minute to yes but your when than when your light turns yellow you are into your five minutes when she talks about the what the great year we talked about two different one of the rest of that money out and that's when she talked about the criteria and that's when she talked about when they talked about it when we talk about it because it was not anything else that you could move that was that about any employee no specifics it was all going through everybody in ruling their performs compared to everybody's and trying to identify the lowest performers and then i ask are you previously testified that you don't have any notes from that meeting correct amount of time but i would i would just respect we said that the briefing speaks for itself and i believe that we have clearly established that they did not use the