mourning it please the court would like to reserve three minutes if i might my name is tony mary representing the appellant here tell me russell we're here on a following a decision an adverse to the jury we're here because we think the district court in this case missed on both of those particularly the district court held that as a matter of law tammy russell's work performance justified the head first actions that were i just don't understand how you can say that and let me tell you why so give you a chance to to address at least what my concern is in a lot in most of these cases i would say there's a factual dispute about whether the employee was a good employee or are not such a good employee but here is i read this your client it minutes consistently that she had performance problems and the whole world her whole position is directed at trying to explain away these problems well you made me do it early on my son's condition may cause me these problems and everything else but there seems to be no fundamental i would hear that she was having difficulties getting her work done on a timely basis assuming that that's the case and i'm just telling you that's why i read this then i don't see how you win on pretext it seems that it seems like that distinguishes this case from almost all of the ones that we see and we see a lot of these so i do appreciate your appreciate you directing me to where you'd like to go a couple of points on that there are volumes and volumes of comments that tammy made with respect to the critiques is some of which she honestly admits that yeah i was behind in this i was behind in that point once so she does admit to some deficiencies in performance she does not admit that the deficiencies in performance were related at all to the actions that were taken in fact some of the actions that were taken contributed to the deficiencies for example the failure to give her credit hours credit hours exists for people who have trouble know there's a lot of stuff in here about g have to go back a year she had a satisfactory performance review at a certain time and and so on and so forth all which seems to be accurate but your whole argument seems to be premised on one steam satisfactory somebody can't become unsatisfactorily and tell the time of the next review and that can't possibly be true so it sounds as if she was she she had problems she corrected him she had problems she corrected um and then you get to december the problems come back again and they said enough is enough ok well let me respond to that but by saying under the national contract i think the i think your premises and correct your honor what you're deemed satisfactory you're doing satisfactory until the next review barring something i assume outrageous but the point here is she was deemed satisfactory in november so you can just step you get a performance review on january first you can just stop doing your work because you're insulated for the next three hundred sixty three days a assume there's a process under the national contract that you can take some flamel action consistent with a national contract to address those i point you with respect to the national contract is they didn't do that we have  here a performance appraisal in january the it says her performance was fine and the importance of the national contract is that can be grieved so there's got to be some objective evidence because if there's no objective evidence you get the grievance reversed so we we have an objective evaluation in january and a points system january of two thousand and seven i believe that says she was objectively qualified then we've got a withholding of a promotion february based on poor performance based upon mr meyer statement of performance and then we've got the next annual review is five and then we've got some grieve a bit little notes in there that your performance isn't very good and then we've got the next ten you review that's fine plus plus this is a credibility contest between the two a great degree between ten year or so and paul meyer and let me say first of all that just by making it a credibility contest it goes to the jury but i'd like to read you from if i might for mr myers deposition you recall that he submitted a ticket that affidavit in support of margaret peters when she when she interfered with taxpayer private confidential taxpayer information in tammy's files and she was defending against her own discipline mr meyer submitted an f a david in support of her now i ask him in his deposition this is a page two forty five of the transcript page eighty two forty five it's in document twenty nine dish to page sixteen line eleven are you aware that margaret peters was the subject of a tick did investigation regarding her entering into or premise there's an appropriate differentiation to be met a between employer concerned with an employee he absences that interfere with her ability to do work in with the association with the relative in this case his son with a disability correct it's entirely appropriate for the employer to be concerned about the lack of timeliness in getting the worked on whatever the reason right correct what's the evidence here that the employer's concern was focused on the reason for the lack of time it's the need to care for the sign rather than just the fact of a lack of time and it's the lack of proper to contain matters ok i think our best evidence on that particular point comes from a couple of places first there was a meeting in may of two thousand and seven where mr van order was present and his russell was present mr meyer were present  that conclusion mean that your client should j v but then if but but you know we all know that there's a good body of law that her subjective view doesn't get you very far getting to the jury i mean what what what's the evidence that says if she's doesn't refer to the i'm john b she's a perhaps the she's a very first to you know a sympathetic view of the reasons for the underlying reason could then i think you go to misspend orders take the affidavit this is once again in the in the market peter's thing where she goes on and on about how tammy made such a big deal of wanting time off for her son and she had this issue people they had always done what they always did and they weren't going to be bothered by the by the law that was their refused so i gather you can see that perhaps that these issues does not does not that there's a but there's a clear argument on the other side that they weren't aware that she was engaged in you know protected activity when they undertook to i mean that's where the threat of terminations comes in and everything else most of the most  trouble nation which caused her to miss two promotions and with help pay in and that sort of stuff i don't really think there's any doubt that we've not may not tied up the by the fishy denial of f l a v the notion that you're not going to get any more if m o a that can be an adverse action depending on the reason i think if they want to say it's because of this reason then we go to pretext and business judgment but the other one is to credit hours not that discriminatory motive was the real reason for their actions i think it's impossible for her to prove that the well documented uncontested poor performance that you noted nine and they never discuss the decision not to promote her in march two thousand and six and they don't discuss the decision to recommend her term an asian well they could be more general they could be they could be taken as indicative of added to you did an earlier point in time so i mean i don't know that that saying they're lighter in that they don't discuss the particular employment actions at issue here really has has much to do with the point for which they are being argued they certainly could be evidence that they were annoyed at an earlier period but i don't think that's sufficient to show supervisors and what the employee was immediately terminated i think just discussion of an employer's annoyance that protected activity is not enough to get miss russell anywhere here the in addition with those affidavits i'd like to point out that there's no real argument that they're relevant to the discrimination claim they mention her son's disability once very briefly they discussed the e e o c claim a couple of times but the retaliation claim is only relevant to the recommendation  with regards to pretext i would point this court commands are and the standard there and i agree with you judge mckeague that the performance here is and uncontested  are there any questions for me