as i was preparing last night i was drawn to one line in the district court's opinion below that i believe that's what the theme of his entire opinion on page nine where he says when he discusses the mcdonnell douglas bur shifting standard used at the rule fifty six summary judgment stage and states so connally must prove that lane's asserted reason for not rehiring her i e lack of work was a pretext for and some of the other recent motions in the motion to dismiss cases that this court has has decided adequately sets out that the court should first separate the legal and factual allegation s and then construe that to allegations in the light most favorable to the plaintiff and draw inferences only in favor of the plaintiff the district court here erred by drawing inferences  of his decisions so we have to determine whether or not the claim was plausible as asserted on the discrimination claim itself the  that conduct is not actionable however even on fifty six motion conduct that has occurred in the history of an employee's time of employment that was discriminatory well i think that there are several factors that that took place during the recall process for a not year that that that inferred discrimination  position that that one of them was slipped back not a surprise but as a lead it's different one of them was like back to drive a truck she was qualified more that's different she hasn't she hasn't met her burden to show there was discrimination here too i understand your position to be that that might be an appropriate a judgment stage but the district court can't go through that kind of thinking at the pleading stage yet so that the district court here at the pleading stage is required to only draw inferences in favor of the plaintiff here inferences that can be drawn by that manipulation of the recall process coupled with the context of miss connally's complete entire employment with rain tends to show discrimination or is that they took immediate action however it ignores the factual allegations that she first complained to the ethics why she then complained directly to her direct supervisor who dismissed the complaint ignored it said i don't believe that that this foreman would act that way she then went back to the ethics line and complained again and finally action was taken throughout that miss connelly alleges that her relationships with those supervisors and coworkers became increasingly strained and that she was laid off before before her coworkers the district court makes a big deal out of the time period between those complaints and her al the ultimate failure to recall her however it ignores the context in which this case occurs and that this is construction work and the workers don't work over the winter months she says i'm a qualified truck driver i've been called back every year i make some complaints and i'm not called back six nine could call back i don't get called back i'm a woman why why aren't and looked at the facts and and applying the facts to the standards that was quite determined that this economy's allegations were insufficient for the reasons that she was a truck driver cracked since two thousand and six and as her complaint squirts precedence in fowler and phillips that that you just have to point out look the way he was treated differently than the gentleman and that's good enough second the court can identify allegations that because they are no more than conclusions are entitled to the two assumption of the truth and then are not entitle excuse me to the assumption of the truth and then third as ms down and this  heightened pleading standard rather the court required which she set for sufficient facts to support possible claims and she couldn't get over the hurdle ok you know i agree there's that every man was called back in two thousand and eleven they say that's not conclusion read those route those are statements of historical fact and they are enough as a legal matter to establish the work to get past a motion to dismiss if you draw inferences in their favor you have a case or some rationale to explain why that assertion is inaccurate and let me just add that you also said that they're right using rental been if she had just said they treated me differently and that was all it said that's a conclusory allegation doesn't tell you anything about what was going on how there was different treatment but she didn't just say be treated any differently she said i'm a qualified driver didn't qualify for years i didn't get called back every medium got called back that's help me understand how that merely conclusory and that an assertion of a legal princip ignore i hear them saying to us and it seems to make some sense that she didn't just say for example i was discriminated against that's a conclusion restatement obviously she said some factual things i'm a qualified driver i applied to come back every man got called back i didn't get called back how were those conclusory instead of statements of the store back which if inference drawn in her favor are sufficient under eighty two that the defendant acted unlawfully so that the standard would be taken into context and using the judicial using the courts just i was commonsense and judicial experience can look at those look at the facts apply them to the law and state this isn't enough because these are bare a and that's that's true even when we draw every inference in her favor as we're required to every in france with the exception of anything that was a legal conclusion or a statement that's not entirely entitled to  a legal end friendships given the way that it's typically like we spend a lot of time here on the discrimination count but about the retaliation count why why was there not enough alleged retaliation it's sure thing for the retaliation count your honor it's a very similar analysis where there's no we're not that there's no protected activity but the alleged protected activity one there's no temperate back then to be and to it's not reasonable and a period of time you know she had been a compliant she had been a pain in the you know what to the company and you know she dealt with all the mechanisms she could be with and there be able to drive or so as you go through that analysis which mirrors what the district are you not weighing evidence and plausible who's more believable and what you think makes more sense which is a perfectly human thing to do but something we were instructed not to do at the pleading stage because every in prince has to be drawn in her favor right that is correct your honor but there are specific facts  to so judge fischer's pointed out she says repeatedly i was going to complain about my treatment all the time now i'm not calling back why isn't good enough if we're talking about drawing inferences in her favor why isn't it perfectly plausible to say they've had their fill and now they were going to retaliate and that's not right there it's enough to two thousand and ten supervisor supposedly harassed her that's one day right next day this is an interesting case we got the seasonal workers you go the full year and go to the first day when she should have been hired or does it does it is  failure to be rehired so the failure to rehire itself was april i may two thousand and eleven ok sorry this can't clancy thank you very much and  thank you your honor i would just like to speak about one point that mr clancy highlighted which is that as the district court found here bare bones allegations  can be can be dismissed however it seems that the district court here in construing the factual allegations of this case where i do each allegation in a wearing harassment and unfair treatment throughout her career and again her dismissal in october of two thousand and ten following an incident where a supervisor had raided her and was very hostile towards her you can read that in a vacuum and states that you know this may lead to an inference of retaliation to a safety complaint but can't make the