the next matter on our calendar is k man r and others for our sins wal mart stores incorporated and others thank you applied for seventeen jobs three of which he applied for during his interim status period between january and april two thousand and ten before he was officially terminated and fourteen of which he applied after his april terminations hannah applied plaintiff had applied a total of twenty seven dollars times including four to m h r m market human resource management jobs before she was terminated and twenty five dollars after she was terminated april that was the job title she held was yes run or irving applied for four jobs after he was terminated of these forty eight dollars job applications that were denied the court of law only one to go to a jury verdict initially he dismissed none of the applications for rehire in his summary judgment decision in a motion to reconsider while wal mart made new arguments in its reply to which the plaintiff received received no opportunity to respond the court then dismissed changed his summary judgment decision complaint there were there's undisputed evidence of complaints that were made by hannah and and barman irving to their supervisors for instance there's no dispute whatsoever that hannah complained all the way up to the highest levels of the h r management about her direct supervisor and two decision makers and then she was terminated that was and in december of two thousand and nine and she was terminated in january two thousand and ten that's one month later moreover it's undisputed that mr barr him made a complaint to the highest levels of the asset manage the asset protection organization to monica m between february and march of two thousand and ten that he was not being reconsidered for whatever reason for jobs that were reopening now the gallo case makes abundantly clear that if there's a reorganization an alleged reorganization because of the job elimination and then all of a sudden like boko dolls the same jobs or other jobs in the organization pop up immediately thereafter that that is evidence of intent to discriminate and in this case mr bar him's own job opened up immediately before he was terminated april two thousand and ten and he complained about it to monica mullins and then mr broadus his direct supervisor who has complained about said in his deposition he said i would not i knew about his complaint about me and i would never hire somebody who had complained about me it's against my my do my at my own interest so there was a direct admission by his supervisor that for the three april two thousand and ten job applications that bar him made that he knew about it and he would not consider him and he also said that he thought retaliation was something that there was no evidence of pretext that that's that was an ultimate jury decision so he dismissed her retaliatory discharge claim and then at trial even though he allowed  her to move forward with some of her retaliatory failure to rehire claims he then held that because there was no direct evidence admitted to by the recruiters that they had  that they knew about the complaints that hannah had made and that's a violation of gordon because the nd circuit decision and gordon is that correct what evidence was there of awareness by an actual decision maker as opposed to general corporate knowledge of hannah's protected activity abundant evidence to give an example ok so the ultimate decision maker was was the division manager and the actual person there is an intervening person if they're being told they don't know why they're being told not to hire her and they don't hire her then that's enough also this court has said very clearly over and over again general corporate knowledge is enough and wal mart does not deny that there is general corporate knowledge the vice president of the company ross brewer was told directly by hannah about it her division manager who was the one who was making the decisions whether to rehire he admitted he was the ultimate decision maker he said that he knew about it ms burgos admitted that she knew about it and she was a maker for a number of the the hirings and there was another person named jones who was also a decision maker for one of the hirings and she said she knew about it so the court made this fact finding that the recruiters were some sort of a chinese wall ignoring the cat's paw theory that the nd circuit has has recognized in the past and also record and also ignoring gordon which says a general corporate knowledge is enough plus your honor there were so many  inconsistencies robin burgos who testified at her deposition and she was a hiring manager she said that she is it's strange there is no way that she can explain that somebody who is so qualified and applied twenty seven times never got interviewed in twenty six of those twenty seven times and in so ira this court has said that was that kind of strange stuff  various inferences that the court could take into account because this this temporal proximity was one of numerous pieces of circumstantial evidence and converting the i think what the trial court did is he converted the temporal inference into a statue of limitations by mistake and if that positive inference falls away you still have the other twenty pieces of circumstantial lot of evidence that i presented and which are a numerated on pages tw develop a record upon which to prove their claims they failed to do that with the exception of one claim the overwhelming majority of their claims and the claims need to really be broken down into separate silos mr barlow was in the asset protection division of the company interacted with but a separate organizational structure above him and mr irving and his hand worked in the human resources support function from the operations unit that separate decision makers that oversaw their work and that were involved in the process that separate people but one involved in the hiring process is  issue in this case over time we have there is no evidence whatsoever that project apple did not take place and did not take place in the way that wal mart said it took place council tries to make there's considerable case law on the circuit that says that the inference diminishes after six months yes but the question is does that apply when there is an ongoing suit we're on or what you're suggesting if i may is that once they file suit anything that happens after that even if it's two or four years later dates back to that effect activity no question eases and it's a question of law using a new word whenever vet use enough to raise some issue i am suing them to suit his own go in and we're going to court and at that point you fire you know a lot depends on what's happening in vents you defended before i had your testimony that's very different than if you started four years ago it's ongoing weakens over time i don't think that think that needs to change i don't think that that does need to change and i think the judge of holding up factored that in accordingly that when the suit was filed four years ago and i application was made in tennessee and nobody that was involved in a particular case even will get to the causation issue separately but if it's that much time it's passed it's a very weak inference i don't think that changes the shot goes to what is used is the time the filing of the suit or of a time what's happening in the suit and i'll get to that that's the next thing i want ask your honor is there is no evidence that anything that was happening in the suit impacted any of those because of time at that point the district court rules for you and at that point they come in and say hey but this suit was on go in and at that point the district court says sorry i'm not interested so i'm not sure when they would have been in a position to come in and say what the ongoing suit was something that should call to your attention you know realistically that's why i'm saying that perhaps the appropriate thing is that round to say you were wrong to take it not to take that into account let's go back and see whether they can show something that was posit the possibility that something had happened in the litigation that would essentially we fresh the suit so we are we do argue that the suit  a district judge says it doesn't matter because the suit was brought four years ago or whenever you is that counsel who is already having trouble  ok you supposed to come in and say oh but you told me it doesn't matter but it doesn't matter because i had this was going on well you're ok i still think it goes to the causation argument that we're dealing  you and you need to make more of a connection other than just the fact that you have a pending suit so if you want to show me that the decision maker had been deposed and two weeks later or a month later or six months which is deposition saying two to suit was i'm going i don't know that it's clear his counsel suggests that they knew at the time that the hiring decision was made but i think more importantly and where the issue comes up with respect to the directed verdict issue is whether m burgos as a divisional h r person or mr morris as a divisional h r person or mr jones as the divisional h r person was aware that the suit was pending or maybe even have been deposed if they did not have any contact with the recruiters there are the people that do the st pass on these jobs when you apply to a job you apply electronically into a system and we've submitted it's part of the record the lists of people there are candidates for that job and he interviewed the recruiter is the person that goes through that list and they make the initial decision if they don't know about the suit there can be no either inference or direct evidence of course zation notwithstanding the fact that maybe the company at large knows about the suit there can't be any inference that they made a decision to exclude him human the argument they are made is and i don't know if it's well and efficient is a combination of a couple of things one that these recruiters seem to be unusually reluctant to interview these directed verdict decision was indeed the correct conclusion part of what the judge is supposed to be doing here is preventing a jury from making a decision based on speculation based on conjecture preventing them from stacking inferences and that is precisely what counsel is arguing here she gives two pages of inferences that should be drawn now while a reasonable inference can be drawn and maybe many reasonable inferences can be drawn they can't be stacked on want to know and you can't say well generally the decision makers talk to the to the recruiters because of course they do their decision to recruit others say here's the panel of applicants that i think that you should consider these are the ones that i think they should pass on to you will have some discussion about it yet they talk about it you can infer that there's some discussion you can't then say based on mr broaddus testimony specifically mr arm that he would never hire a person that suit against sue the company you can't take an inference from his testimony about his specific practice and impute that to the decision makers from his hand and stack it on top of the fact that there's been some discussion occasionally generally between recruiters and decision makers there's not enough to direct your draw the line thank you and i would say that that is textbook testimony that in the wake of project apple if you were banded red you were not eligible to be considered for the same job that you've just been knocked out of and while they dispute that and while they don't believe that that's what the undisputed as eviden nationwide rack and stack of the entire field organization did they do it based on previous complaints is that one that was not factored in all it was factored in the focused only on their prior performance evaluations that were mapped according to essentially an algorithm that credited what their performance advantage is very any evidence that the recruiters when they failed to interview his person twenty seven times did oh she had that job therefore she is not eligible in the any evidence that that is what was going on well your honor i mean you would think that if there were a rule at i interview somebody for last year and i don't interview the same person next year note so will his reapplied sorry that isn't there but you're on your honor this is specifically out and that's why the jobs that they are contesting those jobs between the time that's that's the only time that apply if you were not going to knock you out and then bring you right back if you applied for that job a year later and then some of you were late the c h r o n e o c cases he was directly involved in those pending cases he was the one who swore to it he never denied that he knew about the cases burgos never denied jones never denied these are all the decision makers  was the actual decision maker and counsel saying is that the recruiters were not the same group of people nor did they know what these people knew and that's misleading and here's why because the critters did not deny that they had contact with phil but they were not he was supposed to report he was supposed to produce them under rule twenty six he was supposed to identify them he never did so i had to depose them in the week before trial and at that time seven or eight years had passed and they said they didn't remember they didn't remember whether they had talked to phil but they actually testified and i cite this in my brief that normally they would contact the division mannered you're the person making the decision because they could see that on this person's resume that she used to work at wal mart and they said that would be normal that we i would contact them but we just don't remember and when i asked phil morris on the stand and in his deposition do you deny that you told people not to hire her he said i can't deny that and he said and at trial he then tried to say that he didn't deny that and then i impeached him and by the way that's that's this whole argument regarding the crew recruiters being a chinese wall there was still owe much evidence before the jury that they were lying about that i impeached phil morris so many times that that is an ultimate question  fact that the jury is supposed to make regarding pretext this this court has said over and over again that pretext is a decision for the jury against you know your honor the jury never found against me there was a directed verdict he wouldn't let it go to the jury he took that away from the jury even before they put on their defense right at the conclusion of my case and chronicle ten was one of the recruiters and i never got to depose her and i never and she was never on the stand and she was a decision maker for a number of these cases and i asked to to depose her and to call her because she wasn't produced for it under rule twenty six dollars which is incredible since they're claiming that she was a decision maker as a recruiter they never produced her they never identified or under rule twenty six dollars and i tried to depose or the court said no so he said there's no evidence that she knew but she was never deposed she never gave an  there was no evidence whatsoever it was a clear rule twenty six violation and this court has made clear that when a person is a party is deprived of discovering did you move to comp are i mean again and you just were denied to you you were denied access to this individual what i've discussed at length in both of my briefs your honor is that he put her on his witness list many years after discovery was closed and i moved to strike her and then move to quassia and the court waited until a couple of weeks before the jury trial to deny my motion to quash and then he said the cure is that they will be allowed these seven these eight witnesses that were now supposedly the decision makers that he never identified under rule twenty six dollars and they're like the decision makers and they were he's claiming and they were never identified that i needed to depose them in the week before trial so imagine i'm preparing for trial it's the week before trial and i have to depose them i was able to depose six of them i only got two hours apiece and then with respect to chronicle ten they said she wasn't available so i was supposed to the court was going to give me a break during the trial for a couple of hours at the end of the dated a poser and i got the court reporter i was ready to go and then he just changed his mind and said that i couldn't oppose her and yet decided that that recruiter who we had no evidence what she was going to say was this chinese wall now the other recruiters that testified said we can't deny that we had contact with phil morris and the other people we don't remember we haven't they weren't deposed in that eight year period because he failed to identify them under all twenty six dollars the normal you know and i also would say you're on a one you're on has been absolutely right about everything judge colored raese but i will say one thing with respect to this issue of the terminations the discharge the discharge of cam hanna is the court is should give  decision maker and also by mr broadus that there was no real reorganization under apple when it came to m h r m and map it was only a real reorganization when it came to operations people  look at what they presented as the red banding of hannah it didn't add up they said she but it added up to two dollars it added up to two dollars under their own policies if your yellow banded which is what she actually was if you had a two