please the court i would request to reserve three minutes for rebuttal i'm confident that the court has had an opportunity to review the pleadings and if the court would allow i'd like to forego a recitation of the facts and jump straight into the argument the way to go it is our contention that ms boerum was the victim of discrimination on the basis of her race i don't believe it's disputed that a plaintiff me established a primal face a case of employment discrimination by showing that the plaintiff was a member of a protected class that an adverse employment action was taken against the plaintiff that the plaintiff was qualified for position and that the claim to fourth place replaced by one who was not a member of the protected class i believe that in our case where you have the that we must consider whether the action was material adverse and not simply a mere inconvenience or an alteration of job responsibilities additionally we must consider whether or not there is a object if means of establishing that the action was adverse the defendants i believe give a very simplistic articulation as to the employer's action they suggest to the court that it was contemplated to eliminate  that several days thereafter it was determined that the position would not be eliminated it is our contention that the actions of the employer were significantly more than that simplistic explanation the decision to eliminate missed forms job was made in november twentieth eleven immediately after she had made a complaint as it relates to discrimination that fact is not contested is it fair on whether he suffered an adverse employment action well i believe that's one of the elements but i think we have to look at things in their totality they know  she was aware that cameron had been introduced to her staff as her replacement she was aware that she was being replaced by someone who was not a member of the protected class that  yes two things there one i am saying that the totality of the circumstances constituted an adverse employment action and as to whether or not it came to fruition she began to clean out her office to vacate the premises pursuant to the notice that she was terminated but also what the courts think that i mean is that give rise to a federal cause of action the awareness said judge donald just spoke about and starting to clean out your desk that's an adverse action for the purposes of these federal claims welp i believe that constitutes termination and i believe that once you have a case would you cite as to for that proposition i mean you're still coming to work you're still getting paid but some people have been told that your positions being eliminated and you're cleaning out your desk even though you're still getting paid and that's terminations or cases that kind of factually near that well first book i believe that what occurred constitute a terminations but i believe that it is a stablish that you don't have to be terminated in order for there to be an adverse employment action the courts have determined that a less distinguished title significantly di signature experience significantly didn't diminish material responsibilities i believe that the facts in the case bear out the contrary particularly in the lower courts finding the facts the judge stated  i quote following the january tenth meeting macau we informed the employees who supervised that bore was no longer their manager and that they would now report to cameron additionally the court stated in its opinion and i quote macao we made arrangements for cameron the travel to the troy michigan office in january two thousand and twelve to begin working with boerum staff let me let me ask  guess maybe the same question and different way i think when you boil this down she's told on a tuesday that her position is going to be eliminated she's given a couple of three different options about what she can do one or two of which might involve remaining with the company she's told all of us on a tuesday she continues to go to work for the next two days she's paid she's in her office the decision is rescinded forty hours later thursday she's been paid the whole time she hasn't lost her position it's a forty eight hour interval where she thought she was going to lose her position but she doesn't what case would you point us to that says that scenario as i described it not all the others just i think that scenario somehow is an adverse employment action first of all i would point you to a case but i would respectfully disagree with your assessment of the facts that she had not lost her authority or lost her job in that time period but i would refer you to the smith vs city of salem suspension is different i mean typically suspension was it without pay and that instant it was without pay and retroactively he was given his pay i mean that we do have case law from the supreme court saying retroactively making up the pay doesn't undo the harm but that doesn't help you here because she was paid you know her well we don't know whether there was a decision made to not pay or and by the time t pay the pay the pay day came she got her money but the issue is i believe your honor respectfully that she had been stripped of her working she was made aware of that her subordinates were made of where of that and she was politically placed by someone who was not a member of the protected class moreover the lower court even states in their opinion that there was some question the fact as to good her status was during that three day period but yet the lower court goes on to make a determination that she was not fired in that three day period when particularly her supervisor mr macaskill the even testified that to his knowledge she was not working during that three day period so to suggest that during that three day period she continued to go to work i don't believe is a fair characterization of the facts she continued to go into the place of her former employment to clean out her office that she was not  working understand how we can say to former employees let's let me ask you this question about the record my understanding the record is that it's undisputed that at the conclusion of this meeting where she's told her position is going to be eliminated you have to make a choice between these three options that she says wait a minute you know i have this settlement agreement you can't do this and taylor promises to investigate and your client on the other hand said after i hear back from taylor i'll let you know which of these three options i want to exercise now those facts are on dispute right well i don't recall taylor make it a promise to her to investigate i know there was an investigation and i know my client was silent as a relates to being told to give them the option of her selection one of the things that the point being that if if he's checking into the settlement agreement issue e the facts bear out that her supervisor was aware that she was clearing out her off yes if the facts are as you suggest i believe there would have been some affirmative action to say wait miss cameron don't come in and begin to train for her position wait i'm not going to inform your subordinates that you have been terminated and be in better place wait i'm not going to allow you to clear out your office because we don't know if this terminations is going to be official those things were done and she was made aware of those things and those things had a detrimental psychological effect on her to suggest to her subordinates that she's terminated to begin to train someone to replace or to have or clean out her office some may say that that is if there were damages they were diminish but who's to make that determination if in fact she  morning may it please the court my name is holly robinson i represent the illinois central railroad company and collin mccullough v and this race discrimination  retaliation lawsuit filed by ms bore on the district court correctly granted summary judgment in this case and one of the key issues clearly was the adverse the alleged adverse job action retaliation she's a current employee she has been the manager of a commercial motor vehicle since two thousand and one she was never demoted she was never transferred she was never disciplined and she was never fired and that i think the crux of the issue here her claim arises from this incident when the decision was made to eliminate her position to help increase efficiencies in that motor vehicle department and the news was delivered to her indeed and she then informed mr mccalla ve her manager and mr taylor from human resources that in two thousand and one should entered into an agreement that provided certain job protection they said we're going to go look at that we need to determine whether that's accurate and indeed they did go look at it and after a period of a couple of days they came back and said never mind you still have your job the job elimination was rescinded ms boren did not lose a day of pay there is was no interruption in her pay which i think is a distinction from some of the cases that ms boren has cited where there was an interruption in pay for some period of time she claims that she did not work during that period but she came to the office every day and just spent the day there cleaning  office as she testifies she also did tell them that she would make a decision as to whether she would take certain other positions or what course she would take after she heard back from the about her two thousand and one agreement so clearly she thought that that that her job was going to stay in place and she was waiting to hear them tell her that and she continued to go to work so although the job elimination was communicated it never took a fact without showing an adverse job action ms boren cannot make a prim communicated her it was communicated before he spoke it was communicated to be effective then it was communicated to be effective that that was the intention although they were going to give her the time to clear things out this wasn't one of those things where someone was going to walk or out to the parking lot i think she was going to be given time to clear out her office and so forth and indeed she was paid during all of that time there's also case law to the effect your honor that job terminations even where someone is told your fired immediately but then thin that quickly without any kind of financial effect on that person and that that does  think i don't see that as an adverse job action and i don't see case law that supports that the fact that coworkers are aware of a job elimination is an adverse job action in fact in this situation miss cameron who did come to the united states to start training she never came to troy she was told to stay there don't come because they realize that they were there wasn't going to be this change ms boren then continued to be the supervisor without incident she she was asked about whether there was any anything that that came about with her employers did they treat her differently there was no indication that there was any problem with her employment or her ability to supervise as a result of her being told and then being told that her job was being eliminated and it was told i mean to her there i don't think there was any announcement as to the completely so again no lack of pay and no gap in pay as in some of these other cases she came to the workplace and and they did check on the agreement and they rescinded the job minimus job action does not support a race discrimination or a retaliation claim she cannot make a prime aphasia case and the district court correctly found that they're also in addition there really was no replacement here there was a plan to for ms cameron to take line most of ms boron's duties but that plan was never executed misformed continued to supervise the same group of people to do the same job and miss cameron never actually took over her job actions and never even came to try to talk to the employees in addition all this though this wasn't addressed by the legitimate nondiscriminatory reason for the terminations of her employment and the plaintiff has an able to show any pretext the main argument there seems to be that they should have then if they didn't fire ms boren they should have fired ms cameron but there's a critical difference between miss boring and miss cameron in that ms cameron with sitting in edmonton and the company felt that it needed somebody there the company there's certainly no case law that would indicate that a company has to consider moving someone not just to a different off with but to a different country in order to show that there is no pre be was nicer to miss miss cameron then to her and that is not enough to support a pretext argument there are there are some stray remarks that are referred to but again they don't they really don't impact the decision that was was made here some of them are from people who have absolutely nothing to do excuse me to do with the decision and quoted in several years with respect to their retaliation claim we can apply the same analysis with respect to the adverse at job action the same analysis with respect to the analysis with respect to the legitimate reason and the pretext argument in addition for the retaliation claim there are some extreme issues with causal connection  she bases the retaliation claim on two issues one being her one nine hundred ninety nine claim that was settled in two thousand and one and then the other being a complaint that she had made about discrimination that she believed was happening against some other women at the company with respect to that two thousand nine hundred ninety nine case settled in two thousand and one it's in the far too distant past to have had an effect here it also wasn't something that mr mccullough he knew about and and it doesn't really make sense it doesn't make sense that the company would wait ten years and decide to eliminate her position based on this nine hundred ninety nine case in two thousand and one agreement and then when she tells them that the agreement exists go back and rescind the decision if in fact she wasn't fired because of that case and because of that agreement rather than having your job eliminated or being communicated that the job of would be eliminated because of it had they considered it there wouldn't have been a job elimination in the first place with respect to not actually support imputing knowledge of the company to all supervisors who work for the company they had to know in order to make a decision based on a particular complaint i want to just touch on mr mccullough v he was not the decision maker but was involved in the decision and all of the same arguments that apply to the company applied to him  particularly i would say with respect to that retaliation claim he did not know about the two thousand and one agreement and he did not know about the two thousand and eleven complaint and that those facts are fatal to the retaliation claims against him  so in conclusion your honour's forum can question and she can disagree with management decisions and that's her prerogative but that doesn't mean she that she can support a discrimination or retaliat case in this case she expressed disagreement with her job of lumination and that decision was rescinded she remains employed the district court decision should be upheld thank you couple of points i would like to address first counsel argue that miss cameron never replaced list borman particularly as it relates to that mr borum supervisor testify in his deposition pages thirty nine three forty one page idea number twenty nine or two nine to dash not two nine three and what did you tell the staff i told him that a decision had been made to eliminate the managers at the c m b office and that going forward their operation they would be reporting to colleen cameron up moreover employ some borman supervised that borman was no longer their manager and that they would now report to cameron so clearly cameron did indeed replace bork additionally i would like to address whether or not the circumstance that i described constitutes an adverse employment action and i believe the crux of the argument being made by defendants is that this was a short period of time when there was no loss of pay i would urge the court to consider the line of decisions that we cite in our brief consolidated rocor five sixty one f second six forty five basically the courts have said in those opinions that a term condition or privilege of employment is made out by showing a nexus between the conduct in the employment situation and that conduct if affects employment if it has the effect of unreasonably interfering with an individual's work performance or creating and intimidating hostile or offensive work environment i believe that in this circumstance a case can be made out to a jury that the adverse action taken against ms boren unreasonably interfere with her work performance be it a short period of time for three days she was no longer a supervisor the company knew about it her subordinates knew about it and it had a psychological effect on her a with individuals and candidate that they could not consider boerum for cameron's position yet the defendant clearly testified when asked whether any jobs that cameron performed that board could