today st whether the district court erred in granting summary judgment against mr mahler's title seven retaliation claim and nd whether the district court erred in granting summary judgment against mother's age discrimination claim because there's a conflict substantial evidence the district court committed error on both accounts i'll address those issues in that order but before i do i thought it would be useful if i preface my argument with a very brief timeline of the most salient events met with mr willis and made the same complaint immediately thereafter that same day mr miller went to mr willis a supervisor mr bud me who is the plant manager at the plant which they worked and made the same complaint and immediately after that the same day mr moller left the planet which he worked went to mississippi power headquarters in gulfport and made a formal complaint of gender discrimination relating to two of his female subordinates to the compan employee concerns department july th the very next day vicki pierce the person to whom mr miller made his gender discrimination complaint had a telephone conversation with allen reeves the vice president the company  i would point out the mississippi power in its in its response brief on appeal had a lot quoted some of mr miller's testimony in this point where he says i made the complaint i'm not sure sex or gender discrimination it did your honor and in fact the person who received the complaint name was vicky pierce she testified that she understood the complaint to be about gender discrimination she also understood that it involved two specifically discussing mr mahler's age in retirement in connection with his impending separation from the company and on july th mississippi power terminated mr miller's and employment so those those those honor i believe mr collins testified that the reason he discussed age in retirement was out of some potentially charitable consideration to give mr moller some leave and bridge him to retirement  that his mississippi power's explanation for those comments but in order to accept that that explanation it either have to accept it is true on its face or you have to draw an inference in mississippi power's favor but the case law says if you can draw a benign inference or discriminatory inference from the tom ince then the efforts must be drawn in favor of the non movement in this case mr moller there's and there's no question they were proximate in time to the discharge only ten about about something that happened a couple of weeks before and at that time he made his nd complaint to mr willis he denies acting in in gauging an outburst tirade or anything of that nature acted in a certain manner mr moller emphatically denies that the jury's going to have to resolve to make a credibility examination on remand i want to talk about the direct evidence for mr miller's title seven retaliation claim this is a rare case with direct evidence and because of that direct evidence it becomes mississippi power's burden to prove that it would have fired moller irrespective of the discriminatory animus and that burden shifting in itself warranted denial of summary judgment and he hears a summary of the direct evidence or made the gender discrimination complaint to employee concerns on july th pierce reported that complaint to reeves on july th reeves was the most senior person involved in the ultimate decision maker his response was muller's a whiner for making the gender discrimination complaint and needs to be fired as of that day there was no intention of terminating mark mahler's employment piers recorded notes of her conversation with reeves and memorialize what he said she testified clearly that reeves responded to mahler's gender discrimination complaint by calling him a whiner and stating that he needed to be fired this does not require any inference discriminatory intent is apparent on the face of even if you have even if you have direct evidence of discriminatory intent whether you're proving intent by direct evidence or circumstantial evidence you still have to show protected activity that i mean the district court seemed to think the direct evidence was a bypass of protected activity that's an element regardless before you and then you get this question if you have protected activity of was there this intent to retaliate i'll jump ahead then to protect activity but do you agree that even a direct evidence case that's about proving intent and  you still it's a basic element to prove stablished protected activity yes your are going to address the i'm going to jump forward to protect activity and i'd like to jump back because i have one more important point i think needs  like you said a judge tossed up that the district court concluded that mr miller didn't engage in protective activity and that's why he failed on the st prong of the circumstantial case now but it is it has long been the law in the circuit that title seven's opposition clause extends protections to those who reasonably believe they oppose on lawful practices the best evidence of this in this case that the that the district court did not even mention is when the favored nd declaration  miss miss faith that was one of two female subordinates on mr miller's team i'm going to i'm going to care for a phrase which she says in the declaration but she she said she testifies that she was discriminated against on the basis of her gender she reported those concerns to marc muller and she expected mark miller to handle the matter on her behalf and report it through appropriate channels i think it's important to think about for a moment the context in which mr moller was told these things he was new although he had been in mississippi power company for nearly thirty six years by that point he was new to plant daniel he assumed responsibility for an operational crew of plant daniel and approximately and seventeen so he's new to the plant he's in the new environment he has new employees in this charge two of them are female one of them comes to him and says i believe i'm being subjected to gender discrimination and here's why so it's against this backdrop that mr muller's belief must be measured miss miss affirmed her testimony during a deposition of which mississippi counsel power counsel was present cross allegations of discrimination against her on the basis of her gender i think it's important to if we can try to place ourselves as a reasonable person in mr miller's position that time if he's new to a plant with new employees and a female makes this complaint i think it's perfectly reasonable for him if he sees actions that seem to confirm or corroborate what he's been told by a subordinate he's perfectly justified in going to employ concerns and using a formal grievance process to raise a gender discrimination complaint had he not done that he could have been concerned that he perhaps had been complicit in activity that was prohibit prohibited under title seven management was present to allege discriminator skipper smith and hardy willis singled out one of the females on mr miller's crew pressured come best and suggested she needed to perform what is essentially a competency file she testified that she was blindsided by this she felt singled out she intimated that miss to mr willis that it was because she was a girl and both she and her union representative testified that had she failed the walk down  she could have been subject to something in other words she had nothing to gain from the walk down but something to lose from it both miss failure to miss and miss come best later made statements to russell busch a union representative that skipper smith did not like women in the workplace and treated people differently to a gender issue misfired had been removed and kept off a substitute team leader list due to what she claims was a false allegation of leave because she had been falsely accused of abusing it in the past and it had been hampering her career progression because she was not allowed to serve as a substitute team leader while she was under mr muller's charge so these are the sorts of things happen in a very compressed period of time but after mr muller is new to the plant and has a female subordinate tell him that she subjected to gender discrimination if i could before my time on this thing expires i want to hop back for two direct evidence the district court in saying that there was not direct evidence in this case that was its most critical and most pas dispositive there in my view the district court for that proposition cited and relied on for plaintiff filed an ego see charge that was unsubstantiated a supervisor referred to her as a quote problem employee for for filing that ido see charge this court held that referring to plaintiff as a problem employee for filing yosi charge constituted direct evidence of discrimination that shifted the burden to the defendant there is no daylight between this case and for bella if of are referring to a plaintiff as a problem employee for filing an unsubstantiated ego see charge as direct the st part of the argument the reply i think that speaks for itself she's very clear about what he meant that was his response to her telling him he made a gender discrimination complaint he's a whiner he needs to be fired the last thing i'll say on that point is in my view don't support that in other words missed the only evidence mysteries had on july th was that mr mr miller made a gender discrimination complaint and that was his reaction to thank you very much for thank you mr  very quickly with regard to the issue as to whether or not there was any statement by mark muller of gender discrimination in the meeting on june th or the meeting on july  or even for that matter in front of the concerns group that afternoon sometime after three thirty five pm on july th there's nothing in this record where he can tell us when indeed the phone examination is deposition was able to say i remember using the word gender discrimination sex discrimination anything like that indeed after we went through all these questions in his deposition and got down to that question that well you were at the concerns group this was your last meeting after these series of disputes and meetings what did you say and he as you say use the word discriminatory but when you met with them did you use the word unfair treatment quote i don't think that the words really matter that i think what's important is that i know myself as a manager actions  events that happen would be the most important that how a person parses words i don't personally see any difference in the word discrimination and the word unfair treatment now out some of these cases that have been mentioned by the parties in briefing talk about context so let's consider the context of this individual as your employee mr pierce a she understood the complaint miller made to have been one about gender discrimination she didn't actually say that your honor if you read all of the record excerpts from that section you'll see that these are all medium questions for mr welch and my partner anything about the subject matter of the concerns because she had a duty to report that an employee in his under his authority had a filed a concern but under the concerns department system the concerns department is not to disclose to management what the concern is about an issue points out in her testimony no i did not disclose that there was no indication  voice mail about the subject matter and as ginger layman points out that was also true in her case now i would concur piers didn't didn't mention there is so many events on here if you go halfway through it and go up to july th the key date as you'll see there is an upper section as to what happens when three thirty five pm from the record the actual notes of vicki pierce and then pierce calls ginger lehmann who is at the point she is a plant human resources representative she doesn't report to norman collins the employee relations manager which is a separate group she says well no we don't have any plans on firing him we're going to have a meeting the next morning because remember on july th he was on a one day suspension as a result of the meeting that morning then as you can see dawson who is a member of the car corporate security department was present concerns department is assigned the investigation the sequence of events if you look at the record excerpts for gender layman shows ginger thought it was a one day suspension and that tomorrow morning she was going to have a meeting wheelus and with mark mark to resolve matters and he goes back to work she receives a call as shown in her record excerpts either late that night or st thing earlier that discrimination yet you're saying that's not a page nine hundred and sixty seven senate no your honor i'm saying she understood sitting there that she suspected this may be a case of gender discrimination she ultimately concluded at the end of the investigation that it was not but she clearly suspected it frank dawson sitting there listening to the same thing i did not get that impression but again while appellant wants to turn this case into a causation case and let's look at suspicious circumstances and let's try to parse or confuse what the sequence of events is remember the district court dismissed the retaliation claim on the basis of the opposition clause and the fact that there is no way a reasonable supervisor in this case could come to the conclusion that he had object in the reasonable belief but he was opposing unlawful employment practices now let's go through these in a course i provided the court with this a visual aid let's go through these four a result of the consent the pre consistency meeting and the discussion among operations team leaders on own june twenty one was directed to do a limited two hour walk down that was the extent of it she suffered no loss of pay she did not think it was discriminatory that's in the record her testimony and of course she suffered no adverse person adverse personal action for you to reasonably believe all you have to reasonably believe that it's an act that's posing practice made unlawful by title seven and that typically is or requires an adverse personnel act going on to the next event this was of course the so called good event the actual employment practice is simply the standard operating procedure of most employers if you have suffered an injury you have to bring a medical certificate and then has to say whether or not you were released for work and whether you can do light duty and what accommodations if any you need that was the practice the practice is not being attacked the event in this case was she failed to bring the medical certificate she wanted to go to work she met with her union representative president russell busch out in the parking lot they called what is referred in the record as the disability nurse derek no meaningful work as a result of that party we have us did counsel mark o'mara who approved this about the fact that she needs to comply with standard operating procedure that was the end of it and party willis by the way it made it in his in his deposition testimony that he would comply with the policy and now he understood it and he didn't have any issues with the gypsum spill this is perhaps one of the most he knew nothing about because he didn't work on crew d he compared the two on the basis that four of the employees own crew in two thousand and sixteen or discipline three males of the facts dealing with the spill again going back to the language of the statute and going back to the case law reasonable belief about opposing an unlawful employment practice and that you have to have a reasonable belief that it is an unlawful employment practice there's no employment practice here that's gender based in any manner three males one female were disciplined three males and one female on that group in two thousand and sixteen including pressure combis were not disciplined going on to the last of the incidents bad mark miller claims is a practice that he was is the removal of occurred in two thousand and sixteen when he wasn't even act plant daniel he has no personal knowledge of those circumstances the removal although he understands that he was he was  told that it was because of performance issues and attendance issues and of course as the record shows d she was written up in two thousand and sixteen as it needs improvement on the issue of dependability no difference in how male employees are treated as the record shows there are a seven male employees who have been written up as needs improvement in the area of dependability now with respect to the retaliation claim this is the end of the retaliation claimed if as the district court found he could not reason to believe that he was opposing practices made on lawful by title seven in referencing these incidents i would also that in terms of level of sophistication please look at the record starting on page three hundred and ninety seven where you'll see seven pages of his training log and courses completed in these seven pages you will see that he completed courses on diversity inclusion e e o and affirmative action leadership and management among others there has to be at its core ages or age related comments or in the case of these gender issue it is a house of a gender comment but let's look at what none of these individuals throughout this case you know have been found to have made any age just comments or any gender  have followed it but all have followed discussing retirement issues with an employee even before terminations is not an unlawful him employment practice and it is not evidence of age discrimination in this case this discussion between norman collins and alan reeves occurred six days after the decision had been made to him and this was a decision we're going to terminate him how can we let him down lightly you know we're human resources i'm norman collins the employee relations manager here's some possible scenarios he's approaching sixty retirement under that system and the decision by alan reeves was was no under the circumstances this case of the combativeness the hostile behaviors for which he was terminated that go back to the evidence test or the circumstantial evidence test you have to find discriminatory animists there has to be indications of discriminatory animus on base based upon age here there is nothing with regard to discriminatory n m s on age or for that matter against females or based upon gender that would in any way support relate or  of aggressiveness d and hostility but he admits in the record that he was not calm and he never accepted the report and disciplinary action that's in the record there's a place where you son but it was given to him he was supposed to sign it and he was supposed to date it there's an employee comment section you can comment he didn't do any of those that are clearly objection as explained by alan reeves and that bugged me in their testimony part of the record phase one of the rota was to correct his behaviors counseled him get him back on the right track as an operations team leader and that would have been it presumably we would not be here today if he simply accepted the one day rota even if he put the innocent on this form i disagree but he did not do that and as a result of his complete rejection  this effort to correct his behavior on breach of confidentiality which is one question and going forward and opposing the road and refusing counseling that's of course what resulted in termination but again let's not lose sight of the fact that you can be fired for good reason bad reason no reason at all or erroneous reason that's not on law firm in this case for to be unlawful he would have to have  reasonably believed that he was opposing practices made on wall fall and the standard against which those practices are measured is the standard of woe and the fact is these incidents don't rise in any way to  your honor is just so we're clear because i don't think i am i think the argument was that pierce may have understood mr miller's complaint to be want to about gender discrimination but perhaps mr reed's did not miller came in and made allegations discriminatory conduct against two women right right but we read as you use the word weiner he used the word weiner and he knew when he used the word weiner he knew that mark muller had physically come to employee concerns and made an allegation that two employees were being targeted yes and his response to that was mark miller is a whiner yes and because mark miller is a whiner he says that mark miller needs to be fired is that right yes i think the evidence is is very clear that there is there is direct evidence in this case and because there's direct evidence everything that the that counsel just explained on this chart that it gave the panel of apparently before argument this morning took its burden to a deuce these facts a trial and convince a jury that its version of events is the correct one mr mower told us a minute ago with there there is no doubt based employment practice in this record what what is the gender based employment practice well out your honor i'll preface my answer by stating that in pain versus macklemore the court expose explicitly rejected the position that proof o her own behalf for that event i agree i don't think she would have a title seven claim but she she talks she tells mr moller i am continually kept off the substitute team leader list for a ped false allegation of sick leave i never i never exceeded my allocated hours and then was told wheeler tries to show us about whether that was sex based or gender based well she she has you have testimony in the record that miss come best told russell bush that  earth both women told mr bush that skipper smith doesn't like women in the workplace they're treated differently because of a gender issue miss come best testified about this competency assessment because singling her out because she was a girl and those things mr miller testified that confirmed in his mind based on what ms fayer had already told him when he's there newly appointed team leader that there is some targeting going on and i would i would encourage this panel well i think it puts him on reasonable notice that something is afoot and he and when he sees incidents that he believes corroborate or substantiate what mr misfired told him i think it's incumbent on him to report it and i don't think he can be faulted for