people locating department at the time for similarly situated males were participating in that loan program during discovery at the time there was there was a time lapse here wasn't there when the men got the job it was months later the was not offered that same opportunity in one thousand nine hundred either but i was at this point i'm focusing on what happened while the loan program was actually going on in one nine hundred ninety nine and what happened was while these gentlemen were going through this lo montero attempting to come over into fault locating what they're going to bring a woman in to do a man's job that's a direct quote from the smart those that these were just straight comments they didn't he didn't show that the influence people and that they didn't like women it was a straight comment i disagree with that but there was also the additional comment with respect to ms montero coming to work for them in fall locating at this time what they bring a woman in to do a man's job checkmark tone did not address that comment in his order and that in that we argue was direct evidence of discrimination was when the person who said that to the decision to discontinue the program during the discovery pro by the name of otter who were two of the working form of the two made the discriminatory remarks during his deposition he admitted that while they were trying to hash out how this loan program was going to work he consulted with them and sought specifically say we decided after consulting with the working foreman not to continue the program those working foreman and roger altman and kevin nielsen was roger elements boss together and decided to discontinue this program and effectively keep ms montero from participating in the litter we're talking about the working poor but i don't see these these guys mention it's less than five i would imagine i'm sure that's where p is represented in tells but it is clear that those two who made discriminatory remarks were involved in the decision to totally against what they believe and again another quote there is considerable direct evidence of discriminatory animus because there is no need to infer any gender bias on those comments there's no need to to  supervisors who made the decision to kill the program your honor if you if you read their supplemental position statement not only did they tell the o c that they stuck the input but they also attached statements from these from these working form the same ones that they made these discriminants discriminatory say they are but those those those are proffered business reasons but they're proper business reasons by the same people who have also spoken about my question was to the the the discriminatory statements that you refer to is there any anything in the record that those were relayed to the supervisor and with the supervisors and adopted there is not there is there are no admissions by s r p that they that roger her all men in kevin niels adopted those statements however in reading the body of law in this area i don't recall seeing any any other decision maker adopted the discriminatory comments of the lower level two of the ultimate decision maker has a good business reason to take an action isn't that all we can look at now you are because i think is the ultimate decision maker charged with this very comment that's made my one or two form if we're talking about a straight comment no your honor because a straight comment is something that we're not going to find in this case that it was never communicated to the supervisor and were probably never going to have a case where we see in the record that it was communicated to the discriminatory supervisor but we have your honor is we have the two supervisors please the court my name is john birt and i represent s r p let me start off by talking about the direct evidence in this case and then just briefly talk about the indirect in this situation  just argue and relied exclusively in the trial court and then in their answer in their opening brief they relied only on the testimony of roger herman from the deposition and in that testimony by mr her women he clearly and we pointed this out in our answering brief we pointed out that in that testimony he made it very clear that this was prior to this is montero ever coming on the scene this was back when they were deciding whether to start the program at the beginning and he testified that they did consult the the people who were going to be doing the supervising these corman and asked whether they thought it was even workable and they said they mr connelly asked mr herman well what they say what were their concerns and their concern was in the depositions cited by by plaintiffs they were concerned that as to whether or not these these facilities services electricians would have the the background would have the ability to work with these higher voltages of electricity that was all there was no it's very important if we are going to consider that at all but having been raised in the right reply for the first time this is extort a record seven exhibit nine page three this is what they're citing so that during the training their concerns and that's the input that these supervisors relied on when they later determine whether or not they're going to repeat the program there's no evidence at all in the record even if we look at this c statement that there was any input about ms money they're all about women working in the department about anything and there's no evidence in the right argument it's more subtle than that what they're saying is these two guys don't want women there and when asked how the program was going they said it's not going well and that was communicated to the boss who made the decision concealing their real reason which is they don't want women they're here your honor if you look at the reports they didn't say it's not going well the reports in fact that's part of the argument that they made was that the report said gee you know these guys these facilities services men that are we're now supervising they're doing an adequate job they're going whatever we asked them to do that the decision makers get input from the foreman they got input about how the facility services electricians were doing in the training program and they say that the people who give the input don't like women working on the job they that's  linkage that would give give a reason it's going to be a genuine issue it just can't be fact that they had a conversation about the weather or about the equipment or about how the facility services people were doing there has to be some indication that there that there's this attitude or even these comments that were made by two of these working foreman were somehow negative or somehow would have gotten to the decision makers so that it could have possibly influenced them this record is devoid of any anything like that there's no genuine issue that there's any type of that influence in the decision maker that reached the decision maker that could have possibly influenced it that's not direct evidence they haven't presented any direct evidence here this is just marco got it right these are straight remarks by people that were not involved in the decision they gave input to the decision makers but they get input not about  p they're just not there and we said that in our answering brief we said these three aren't even there we never said that to the e e o c or anyone else we never relied on those at all and in the reply brief they don't contradict jus t those three statements just briefly our players did not possess the background training and experience we never said that we never said that's the reason why she didn't repeat the program for the second one day legend there in their br  ploys that they have and so there is some discussion in the e e o c statement that says you know by this time sylvia is now requesting you know after we're done we're done evaluating this program with the that's i think the little piece of kernel of truth that then gets changed into this allegation that we said we didn't need anymore operations journeymen and we did not the third one that we never said is the local long program was unsuccessful and that it just wasn't cost effective and those are just straw men that are built up and then knocked over and they don't create genuine issues they don't create substantial circumstance circumstantial or indirect evidence which is the standard that they need to satisfy program they actually were handed jobs or whether they had to go through the normal competitive bid process who cares that's not a genuine issue of material fact as to why we didn't offer her the same opportunity that has nothing to do with you know you could go either direction and it doesn't that's not a genuine issue of material fact so the second one this montero agreed to work at fault locating in june which is the start of the peak season  locating simply did not have the manpower available at this time of year to dedicate extensive training to miss montero well they say again that that is a statement that we did make in our in our position statement but we never said that was the reason why we decided services electricians were in the program they were being paid at journeyman's rate even though they weren't really doing journeyman level and the nice thing about the apprenticeship program is that it cures that because of an apprentice when you're going through the program you get and we've never very varied from that the final the six reason that they offer as some sort of inconsistent statement was plaintiffs would have been included in the program if you were available in and determines whether or not they're telling the truth about what they in fact spoke spoke to i spoke with mr her a woman about we aren't going to know the answer to that question unless we just accept as our piece proffered nondiscriminatory reason that the program was going fine and these gentlemen were doing ok and that's evidence by the fact that they eventually got jobs and became operations journeymen and then in the same breath say that s r p went to these four men to determine whether or not the program was working and they said no that shut it down completely contradictory if it was working if these gentlemen if these four gentlemen who became working foreman who became foreman were doing so well why do you think that the program down just as ms mondale was trying to get