trial and that the you know nort normally in circumstances like this where our court or the supreme court has ensured a day and intervening decision which certainly bears on the subject matter of the  case i think our practice as a court has generally been to invoke the wisdom of the district court in the first instance and have it apply the law pursuant to our instructions without our telling it what to do and let that take place i assume you'd be satisfied with that we would it be exactly except that your honor and think that there's no doubt but this case should be remanded at a at a minimum but we think that the wreckage here is so strong that we should it should not be necessary to have the judge and that would be your answer but i said normally we are right hardness of how strong the record seems to appear to the parties and maybe even to us we do like to have the district courts first take on that i have said but i mean why that's inappropriate but this is only for two reasons one you have a this is a dyno vote b proceeding no matter what is the noble proceeding that you are empowered and directed to look at all the facts and make a determination based on those facts as to whether there is sufficient evidence here in the record to support  to over turn a summary judgment motion and i think in this case it is so clear that we have several aspects of the several aspects of of proof that would lead to your reversal one of the reasons that was daniel's provided for granting summary judgment was that there was a legitimate nondiscriminatory rationale for the termination that was not shown to be he said about that well it might be a certain amount of information that is not pretext row but the standard of this circuit is that we do not have to show that all of the at that only one decision can be reached but all we need to show is reason to terminate someone and it's not shown to be pretextual that is not enough i'm sorry i don't think i'm following that but i'm not i don't think that's what i'm saying wh saying that if there is sufficient pretext evidence a pretext that is sufficient to overcome a motion for summary judgment i'm saying what i'm saying what i'm asking is that just daniels appears to have decided that there was not any evidence of pretext i'm on a right or wrong about that i don't think he reached that issue your honor i think that he he decided two things one he decided simonton applies and therefore they cannot be any sex sex orientation sex discrimination claim whatsoever then he went to sex stereotyping and he decided in reading of your pr decision in dawson versus bumbled he decided that the courts have found actual title seven claims in cases where plaintiff such suffered adverse employment action for failing to conform to stereotypical gender norms through behavior or appearance and he was really focused on that he held at the argument i don't know whether that's not necessary in the record but in the argument he was totally focused on do we have any evidence that there was i appreciate that you just look at his opinion ages eight to nine he seems to go through the analysis and all of my questions are directed to and or prompted by my colleagues as hall's question which is you're asking us more of from one of them more aggressively to reverse a summary judgment decision as opposed to vacating letting just daniels decide if you want to redo the summary judgment he can do that your honor i think that it's important for this court to lay out at least some guidelines so that the lower courts know that sex discrimination be based on and what gives inferences and reestablishing the was very focused on a discreet issue it did not intend i think or pretend to displace all of our case law regarding pretexts so that case law is very clear i'm not disputing that it i don't think it was and i don't recall it being directly addressed in in saudi and what i thought was most important in saudi is that order and the question is should we send it back remain a back so the judge janice can do whatever he wants to do who are should we as you're requesting send it back specifically for trial i have to go back to the fact that you have the right and the obligation to review the nova and i believe that the evidence is so strong on several issues pretext the rationale is that a given you know the sales goals that were not met when in fact nobody in the other sales reps were given and then he was set up to fail at that don't way he could possibly possibly have achieved the goals that was set all leading to the ultimate decision the the major pretext i would submit to you is they hired someone or promoted someone who had absolutely no experience sales experience if they're real if the real reason was we don't think the job is being well done  it was only there for twenty years and was only the outstanding self or it's for all that time if we don't think that the the job is being well done by him won't you think wouldn't you think that a good employee would go out and try to search for somebody who has sales experience and knowledge and ability but no they took a straight man whose only experience was tending to the ball he was an inventory clerk at that so let me ask you this question and then i'll let you sit down since you're well over the time that you red light has come on if we send it back to trial for trial as you request is the issue of pretext off the table is that is that already determined now i think so it's still alive whether it's  a strong enough case a pretext will suffice to get over to your point at this time is that they haven't shown a strong enough case of pretext and they can get a chance to do that a trial in my case is that we have shown a strong enough  take your time james lamont it is with fox rothchild on behalf of you it i'm sure is going to shock you all but i also tell you that this case is very strong and i also agree that there is something that your honor should be doing besides remanding it i think this gives this court an opportunity to help define zoraida and to say woods is not on this record there is nothing to suggest to intimate any type of discrimination indeed there are incredible nondiscriminatory legitimate business reasons for the employer's decision and as your honor has pointed out judge daniel specifically looked at all of the evidence a couple of the interesting things the judge daniels said was that on page eight hundred of the record in were with respect to the gender stereotyping claim i hear that your honor and i understand completely but i also bring your honor down to the next paragraph the next paragraph says more over plaintiff has failed to show he suffered an adverse employment action under circumstances giving rise to an inference of intentional discrimination based upon plaintiff's membership in a protected class not based on gender stereotyping i'm just suggesting that is author has looked all part of the gender stereotyping because the facts he referred to and decided did not prove the case  that he was the only one who was fired for declining sales there were declining sales everywhere he had a terrific difference in  sales but that was only after most of his territory or a good chunk of his territory was given to somebody else that if i could address each of those ok let me go give you a couple more to address  and and there was another fellow who was not disciplined even though he had stolen five thousand dollars with the money i think he says if you compare him to how other people were treated he was discriminated against that's what he says i don't my view is somebody else has to make that decision but he's got some facts there and if i can just address ok go ahead as as for the declining sales his were the lowest percentage on it was that after his territory was taken and the sales were adjusted to how yes and i think that's exactly the point your honor having adjusted some of his sales territory the goals would be reduced so this was a benefit to him to reduce those goals so he could have an opportunity to come closer to accomplishing them if he had been held to the higher goals from a bigger territory then i would understand what you are saying the point is that there was a decrease the other thing to understand is that the mr kerrigan himself had established some of his goals he would set the goals to begin with indeed the goals for the year that was specifically declining occurred after a meeting with ms beau damn who was the wing before the mr forgive me if i'm going to completely mispronounce a name for set and it's plaintiff's position that it was mr present that brought in this boy's club well except that the other president who had been there all those years helped in establishing those goals they ended up reducing those goals for him and he still was not able to accomplish them he was the lowest performer or and he was tied for the second lowest on a couple of times it's like a great argument for summary judgment it does but and if we're looking at it you know you're not  right and i completely respect that i'm simply suggesting that the panel has a unique opportunity to help define zoraida to see what it is and intervene one way you say we win you win which sounds to me like i know your honor quite figure it out in the first instance frankly and with all due respect to the fine arguments each of you has made and then a court of a panel of this court review it after one of you wins and one of you loses exactly what happens in all cases a decision is made that sets out sort of standards and then that those standards is that sexual interests in the sion is prohibited by seven the question did and a record was created and a record was presented the problem that we've got is that just daniel seems to have been decided i'm not saying that was incorrect at the time because he didn't have the benefit of zoraida that a sexual orientation us is that correct that is correct the only thing i also bring to your honor's attention is the next step that he said moreover looking at this he found that there was no insufficient evidence of adverse employment action under circumstances to give an inference of intentional discrimination based on membership in a protected class i'm simply suggesting that i think he was talking about the to end her stereotyping claim at that point i understand your honor ok i'm simply attempting to present anyway and look at it team work talking about the other claim i think he would have had to say a little more because he didn't address the other evidence that goes directly to the other claim he addressed i think properly the evidence that went towards the gender stereotyping claim anyway right thank you to see some of these cases rather than us playing page after page of written argument where my adversaries and i will keep saying very cogent things but we're not going to get many many places i think it's so here that there is a conflict but i don't think it's that clear yes it seems to me that yes he his turn turn was reduced in absolute terms he didn't make as many sales but he did have a difference in percentage of goals there was another thing that happened and that i think before the new management came in the old management said that you make two hundred thousand dollars a year you don't have enough customer calls to justify that so that doesn't mean they win in my mind that means that summary judgment in your favor is a little tricky i'm not sure where that last fact comes from the fact of the matter is that in the two thousand and twelve the evidence will show that mr carson made more  sales calls then and it's five of the eight to thirty five we can mr bode president boman e mail cargan stating that the next wave of leaders will not accept customer activity at the level you know you're on a date there's a stuff in both directions and last and so for us to say here that it's so clear that we have towards summary judgment to your side i'm sides that's a jury you cannot make the call it should not be making pred ability to what i'm saying is that for a court of appeals to say it's so clear that we must deny summary judgment is really now and then it has a different legal standard could look at that a mentor a summary judgment warranted for their side or should you go to trial i am convinced that he can look at it and i'm convinced that i wouldn't be trying so hard to convince you i'm convinced that he will find that summary judgment does not apply let me get to just one one issue that was just given the reduction in territory and therefore quote we reduced his  his goals now in fact that year that's two thousand and thirteen the evidence shows that mr koch and gold was increased fourteen percent his goal was increased fourteen percent when nobody else except in some ways was increased more than seven percent so we have you know i don't know what you remember i love lucy and and ethel lucy went to the chocolate factory and they were trying to put the chocolates in the box i guess none of you precisely what was happening to mr caution every time he came close to doing things that you know they wanted him to do he could not win because they kept speeding up the the belt on that and the same thing goes for the establishment of the original the original look goals the original goals that mr brown established in two thousand and eleven mr caution was increased ninety two percent nobody else more than seventy three percent well beyond your top pay well well beyond your time and we have your arguments in mind