sixteen five two or four and a savage versus fed ex corporation at all argument not to exceed fifteen minutes per side mr r freeman you may proceed for the of the federal law that protects our brave service members and veterans to go military leave to not be discriminated against or not be retaliated against and have their pension contributions continued when they serve in the armed forces my client lieutenant savage worked for eleven years as a mechanic at fed ex he had a perfect record seven out of seven on of valuation is he want to wards from the f a a from fed ex for his service for his teaching other mechanics unfortunately he started complaining about his fellow service members and him not receiving the right pension contributions in the summer of two thousand and twelve in august when he comes back from military leave he complains to his supervisor mr turnip seed he complains to his human resources advisor mr lott within a month of that he finds himself interrogated suspended for an alleged shipping discount shipping violation terminated a week after that and alleged concede that there was in fact  we can see that as written the chain the amended policy that was amended about a week before he was suspended made clear that he was violating the policy and we can see it for the purposes of this appeal in this case that he should have been disciplined or should've taken some sort of disciplinary action against him but not necessarily terminated and as the jurisprudence of this court makes very clear when you're looking at the affirmative defens fed ex must prove whether he would have been terminated in the absence of discrimination or retaliation it's not good enough just to show that he could have been terminated they have to show to a reasonable juror  he would have been terminated and he can't do that fed ex can't do that here for a number of reasons we think this case just rational to come down to three issues one is the standard view a summary judgment which is that the evidence asked and all credibility terminations have to be given to my client's favor second the standard review and you sarah of discrimination retaliation under forty three eleven see if title thirty eight is very favorable to the plaintive we only have to show that there was a motivating factor of discrimination retaliation in the decision but then the burden of production and proof goes to fed ex to prove that he would have been fired saying the motivating factor was his service or his complaining it's bullshit i think the overall the best evidence we have to be frank is that he complained and immediately after that within a month he was suspended terminated there any evidence that somehow his service it ever worked against him  t yes your honor there there is specific evidence about hostility towards his service as well as the service of his coworker and friend cliff cunningham mr mr savage was written up by his supervisor previously for taking too much military leave during the peak season when you know the holiday is like right now and it wasn't wasn't his choice at the time to take military leave he took the military leave and served and was written up his kids fellow coworker cunningham around the same time period was was actually taken off the shift a preferred shift that would have paid him more money because he took what the company thought was too much military leave so i think there's a case for retaliation counsel do you have any the record your honor i would say though that as in this court and the supreme court have repeatedly said that the fact that a service member or the fact that a person one class is treated  well in the company does not tell anything about whether in other case in the plaintiff's case whether that person was discriminated against like was the actor to the same group defense in terms of the decision makers has no bearing on of the court when looking at you sara discrimination retaliation claims this court doesn't ask was the act of hostility towards a service member an adverse action the adverse action here is he was suspended and then terminated but when you look at what could be inferred into a reasonable juror can infer in terms of the motivation for these at later adverse actions the it doesn't matter whether the specific hostility before constitute an adverse action well though in a deposition my client supervisor troy terms he looked at a chart of his permanent record of write ups from his ten year eleven year history and i believe that this would have been on it so in other words circumstantial evidence of later discrimination against or retaliation against that individual i think that you know my client can prevail in his case under retaliation or discrimination and they are separate claims the most significant evidence i think here is that we have strong evidence of retaliation we have a month of temporal proximity which puts it well within the temporal this court prudence for either finding that temporal proximity alone or in combination with other factors can of retaliation we have not just hostility towards my client but towards other service members we have in an unrefuted point in this case about my client's leadership on behalf of himself and others that under the right line line of cases w f bolen in this discourse published opinion in the one nine hundred ninety s says that if my client was leading on behalf of other service members which he indisputably was there's an inference that when he was terminated shortly after that leadership that he was subjected to retaliate in and then of course i think the most overwhelming point for my client here is that the rich allegation is there were three other individuals who committed similar or even more egregious violations of the discount shipping policy they were not terminated they were given warning letters and suspended two of those that occurred before the mr franklin and mr mel gar one parent occurred after but not so far off in time only a couple months afterwards and so i affirmative defense that fed ex has the burden of proof fed ex does not provide any evidence about the protected status and if you look at this court's decision in hants following that the federal circuit's factors in she hand the language t describe what can prove a motivating factor it doesn't say there has to be disparate disparate discipline or adverse action with respect to someone in another class it just has to show that this that the plaintiff was treated differently than other workers and if you at the end of the day if when you're looking at different service people also i think it would it would matter in terms of the weight but in terms of the ultimate question of whether my client would have been terminated i don't think that it matters and you know here there is no record evidence that any of these three followed the complaint the franklin perrin or moger and that's crucial because when you have such close time between the complaints and the terminations suspension and you know that all of these clues that two of these three complaints to these three other and other workers they appealed to a higher corporate level that through the guaranteed fair treatment process as my client did so you're talking about a higher corporate level of valuating these terminations decisions you see that the higher corporate level was lenient towards other people and franklin is the most for doing it well then they have to come forward and show that i would have fired him anyway that's correct that to prove that when when when you're talking about pretext being an issue in the sarah case unlike mcdonnell douglas the title seven fed ex has the burden of proving the absence wrote in the petit decision the fact that there could be one possible legitimate motive which we acknowledge here there could be does not mean improve that there that they would have and if you look at would have that's correct and i think if you look at the cyber first home depot decision it's published six circuit opinion in that case there were eighteen other people who were fired for the same minor offen and when the court had to had to look at in say well could a reasonable juror conclude that this person would be fired for such a minor offense the court said this seems incredibly unfair but the test the only testimony by the by the person who is making these decisions is they were very hard on this particular minor offense in all eighteen refired here we have a supervisor who put in a sham undated declaration and says we decided it would be in it would be consistent with fed ex policy to fire mr savage for this particular violation there's no there's no who what where when why there's no description of who and he says i'm not aware of anyone else who was not terminated income you know contrary to the production of fed ex letterhead of documents showing three others were not terminated mr savage did not establish his promise face a case of discrimination or retaliation and under the userra burden shifting he has the initial obligation to establish by preponderance of the evidence his promise facia case and judge anderson found that he did not do that secondly fed ex did proffer unrebutted proof that it would have terminated mr savage regardless of his military status or any protected activity and third with respect to the retirement benefits issue judge andersen was absolutely right mr savage did not put forth any evidence or any explanation as to how he contended that fed ex miscalculated his retirement benefits and he tries to raise a completely brand argument on appeal you're on is mr savage in essence says that he was terminated because fed ex harbor some anti military animists toward employees in the through that because this is the unruh but it evidence first of all fed ex hired mr savage when he was already in the naval reserve and so fed ex knew that he would be taking leave the military leave of absence when they hired him under the same actor inference that this court has adopted in mccall really vs alford williams it's suspect to claim that fed ex hired mr savage and all the other employees who were in the military and then that that's not disciplinary in nature and mr savage admitted that himself in his deposition all it was is a counseling which is a training tool and it memorializes a conversation that one of his previous managers who didn't have anything to do had what it was about he he told his manager that he had to do he had to complete military training during fedex peak season and fix it peak season is about the beginning of december through maybe the second week of january and so when his manager cold his the naval his superior in the navy he said well he can do training whenever he needs to and so the discussion was listen if if you have to just to make certain am sure that i understand what you just said so the reason this was written up is because mr savage represented that he was required to take training during a specific period time when it that he could have exercised judgment and taken that training at some other time less critical to fed ex's operation is that correct that's right it was just a communication issue and so fed ex does that as a training tool you know listen this is how we should approach this in the future that's all it was a disciplinary letter on the other hand has consequences to it so for example if you get three within a twelve month period you'll be terminated if you want to transfer you can't while you have an active disciplinary letter on file and it also affects your performance evaluation which affects your annual increase a counseling has none of those consequences all of there not only did fedex accommodate mr savage it went above and beyond and been over backwards to try to accommodate his military obligations so for the eleven years that mr savage worked at fed ex he took fifty five military leaves of absence it's undisputed in the and fulfill his military obligations so mr mr savage had to frequently fly back and forth from methods to new orleans in order to fulfill his military obligations and sets although it didn't have to and certainly wasn't require usera they allowed him to fly and fedex planes to do that they also allowed him to take computer based navy training on fed ex's computer and most importantly while he was on the clock et exoplanets paid for him to take navy training i mean i'm not sure what all fed ex could have done more in order to accommodate mr savage and help him with his military obligations now his attorney makes an excellent point that in his eleven years until he was terminated he didn't receive any discipline at fed ex and this is even though he was caught for instance sleeping on the job so fed ex could if it really wanted to target him or discriminate against him they certainly had the opportunity but mr savage is attorneys right he didn't receive any discipline any adverse action during his eleven years before he was terminated he did get good performance evaluations which meant he did get any will salary income increases and any time throughout those eleven years that mr savage would make a complaint or raise an issue about the way he felt to the that he was being treated because he was in the military this is in the record that mr savage agrees that fed ex resolved those issues to his complete satisfaction and this court in esher found that there was no hostility when a manager quote ultimately responded to esther's concerns in a way that was satisfactory to him and that's what we have in this case we also to judge donna's point you know fed ex routinely hires many people who are in the military and it's in the red it actually isn't the record that within mr savage is group there were several members of the military so he was a mechanic they mention by name three other mechanics that fed ex higher in his group that are thriving that do that are still there that are still getting compensation increases and so forth and in addition there's also evidence that none of his managers ever say any anything that would reflect any kind of military analysts toward him ok first of all your honor that is a brand new argument that was not raised in the district court i mean we're hearing about that for the first time on appeal is the first thing and if you if you look at so when i saw it for the first time on appeal i went back and looked at what mr cunningham was talking about in his deposition and that he says that that's it's his it was his interpretation that a former manager dana jones who didn't have anything to do with the terminations decision transferred him to a shift that he just didn't didn't want he just didn't care he preferred his other shift that was his interpretation but mr savage shouldn't be able to raise a brand new argument that the district court was not able to to consider and that's what he's doing and it's completely irrelevant because the issue with that manager that manager didn't have anything at all to do with this terminations decision the reason that mr savage was terminated is crucial to this case because he was terminated because his name appeared on and an automated quarterly audit that is generated is not a person that comes up with a list it is based off of the top ten employees who have what now thirty but when during this period it was ten the top ten employees who have the highest use of their employee discount so as this court found an escher it's not like there was a manager who targeted him or somebody put his name on the list his name franklin  probably noticed franklin and prome were not in a fight in the district court their names never came up i went back to the briefing their names are nowhere in the briefing again and this seems to be a trend in a pattern but mr savage is is raising several times new arguments on appeal and that that's improper but he has one of the ways that he can establish his prime aphasia case is to show that similarly situated compared tours were treated differently but he has the burden of a stab of saying that there are similarly situated and he hasn't done that he hasn't put forth any proof that they are similarly situated in fact with the inadmissible freestanding letters that he attaches it i thought those were letters that appeared on company letter home under the rules of evidence are miscible and under the rules of evidence they might be authentic but that doesn't mean that they are invisible because they're still  hearsay issue and they're still a foundation issue and if they are not if there isn't any evidence to show that they are similarly situated then it's irrelevant and it's not franklin perowne did not have the same managers or management chain that mr savage and this court is hale that when the issue is disparate discipline like it is in this case and he's saying well they were disciplined differently than i am then one of the relevant factors to establish whether they are some with situated is whether they have the same managers and one not only is there no proof of that but if you look at the inadmissible letters it shows that they did have the same manager and it show that they didn't have the same situated then the way that they were treated is irrelevant and to this case and the district court if on if we got the promise i should work to the second step of having to show that you would have to fix would have discharged him anyway and you have these comparatives who have violated comparably violated but are not because absolutely no proof that there was any comparable syria that their alleged violation of this policy was comparably as serious as if mr savages there just isn't any and it is if mr savage is going to establish his promise facia case he's got to establish that what is in the record what we know is that for mr savage but tween march of two thousand and twelve and almost of two thousand and twelve he used his employee discount nine times and over a two year period he used it over over two hundred times and when he was being interviewed by the security specialist who did not know he was in the military and that's important he admitted in this is where the admission comes in he admitted that he and his wife so various items and they were he went through the laundry list of items that they saw all kinds is he's been called a on and he's having to explain it if he knew that it was a violation of the policy you know thought he would never admit it now your honor for the eleven years that he was there the policy was very clear that you cannot use your employee discount to make money and that's exactly what he was doing mr savage of the tourney say it well you know a couple weeks before he was terminated the policy change that's a red herring the p way he had been using it was to generate money and throughout his tenure at fed ex it was clear that that using your employee discount for a commercial purpose or to generate money was a violation of policy  yes it was is that list randomly put together or i mean why if he's been doing this all this time is this first time he shows up on the list because what what he testified to was that he and his wife work were planning on moving and so they were just clearing out certain things in there and then during during this period is when he really it was a concentrated time where he used it more than in any other time so before that he just been overusing it now  using the hugely well now he was one of the top ten people using it where it before he was using it a lot but you can use it and of an abundant amount but if you're not in one of those top ten then you don't show up on the list and you're not investigated and using his employee discount he was advertising free shipping to these consumers that he was selling it that's that's the time when i explain thank you and prior to that change which made explicit mention explicitly prior to that the policy was you can't use it for commercial purposes it always and remained that you cannot use it for commercial purposes with the what the evolution of of time in the bay being a factor now they just use that as as an example but it didn't change the policy you still can use it to generate money and he had been he had been doing that and he admitted to doing it and so you say or does not force fed ex to disregard a gross violation of policy and it was a security specialist who had no idea that he was in the military when she investigated this and she made the decision that he committed a gross violation of policy by or anybody else in the top ten she did well the security specialist didn't terminate anybody sheep she turned her findings over yes but fed ex terminates people for this and i've been affects over ten years and i will say this is probably what people but again he he did he never was a comparative who was not far he was for a comparable violation of the policy no it was not comparable and there's no evidence that it was comparable and we you know why was it not comparable why is there no evidence that it will why was it first of all you said it wasn't comparable so tell me why isn't it comparable ok all right well two things i want to make clear there's no evidence th was comparable now all of out of the record because it was mr savage burton to do that but it's my understanding which is not in the record but that mr savage is girlfriend used this one and so she said it is where you're not supposed to using it anyway but so let's assume that that that isn't a record that's not of comparable seriousness that his girlfriend used it one time now mr savage said well that's worse because you know you had an authorized person using it well fed ex them think that's worse than our again all this is hypothetical because and let me i'll say this in closing but mr savage had been subpoenaed mr milk and we were prepared to travel to miami rule under userra so how do you respond to the argument that was my that but calculating his pension benefits using an average of his that should have been using an average of his on over the prior twelve month period welfare benefits did use a twelve month look back to calculate his his rate of compensation did they do it based on on on times and quits he was there working versus a complete look back for the twelve months time period prior ok two to establish his rate compensation leave the twelve month look back to determine the way out yeah go ahead you're right but to determine that hours that he was on leave they looked at his schedule of when he was out leave ok so the question becomes what is your response to the klein that the time that he was out on louis even though you have the amount of his wages calculated with the twelve month look back at did you not also need to calculate the amount of time based on the previous twelve month period as well and this is the understanding that this argument was never raised in the lower court and they had the opportunity to look at it for the first time in my questioning your i just want to make it right are you doing it wrong we're doing we're doing it right but by that double step calculating the a out the twelve month look back but calculating the time by the current employment period even if you look at that language that talks about the twelve month look back it only refers to the rate of compensation and it  has to turn to talks about the use the term compensation quote and use the term period of service but what mr savage is arguing is that compensation in compas is a period of service but under the rule  statutory construction if you have two separate terms that appear in the same statute they have separate meanings but when when when the statute refers to you know if if you can't be reasonably certain what the rate of pay is you have to them the twelve month look back they don't say anything in that twelve month look back section about any imputed hours it only refers to any cut method of determining what the hours would have exactly exactly it's of that is a current calculation in the pension plan now you do it one look back one current right well yet one look back that's right yes one look back and one ok when he was out so let's say he was he was out and you know he says i need to be out and monday all right we look to see how many hours were you schedule to work on the monday that you were out and we used we used tho out schedule for the current yes thank you thank you that there's a lot to digest there but let me start with the point about the three other the three other workers frankly and parent if you look at page nine ninety five ninety nine ninety six of the record which is paragraph forty three of my client statement of material facts in the dish recorded says other  different class to show that there was unfavorable treatment for the plaintiff and if you're looking at the affirmative he would have to be showing they're not military and they got taken motivating so if they were also military well if they didn't make complaints for example which there's no evidence that these people did make complaints that would be that would help towards showing it's a motivating factor but if you look at this is the if into the fed ex affirmative defense they have the burden of proving they would have made the same decision there's a problem well i would proffer that if you put aside these three other people you have more than enough between the leadership the temporal proximity and hostility towards my client to show motivating factor even one of those could could suffice i would point out that i don't want to dwell on the discipline a number of years ago by his prior supervisor but you sarah protect voluntary or involuntary service so my posing counsel here just a minute effects of the pattern or practice apparently of of telling servicemembers they need to schedule their voluntary military service around their leave which is illegal under userra and is very troubling it's also troubling that he tried to suggest without point any evidence in the record that mel gars violation was comped what was was different than my client violation there is undisputed evidence that fed ex the investigator the decision makers in  the termination they didn't care whether there was zero one two or ninety violations they didn't look to see they didn't analyze the actual shipping shipments to see how many violations there were it's hard for a reasonable juror to believe that the are different violations if there's no if it acts their corporate representative said they didn't care how many violations there were if anything it shows they were out to get my client because they were they went into this geishas to they said the investigator all we want to know was that he admitted violating this policy and once we did we had to spend this his suspension letter already written up to give to him you know immediately after he left which a reasonable juror could find is with would suggest  so first off the grab i'm in of my client's complaint at the district court level and i admit it wasn't crystal clear but the grabbing min of this complaint was that his overtime the hours he worked above his normal schedule were not being included the main reason why violates the law is it doesn't take into account the amount of time he works overtime so you know and if he had a schedule he would not know until the day whether he was going to work over it will it's not that let me take a step back the whole purpose of forty three eighteen b b three b the not reasonably certain provision is that if someone works on commission on overtime there you are you wouldn't know week to week how much they're going to make right because you can pick up an overtime shift your manager can say hey mr savage can you pick can you work a second shift need say ok fine and he'd work a second shift ripping up another day during that week if it's an if it's not reasonably certain how much you're going to work that causes it you wouldn't know how much over the period of the military leave that person would have earned right so what congress did very smartly is they said let's create a bright line rule for how to figure out what their compensation would be for the purposes of determining you know let's say it's ten percent is goes into your four one k of your you know of your salary what is the ten percent up what is the compensation and that compensation is the average earnings the average rate of compensation during the twelve months prior period it's a complete look back at it right but how do you do step to well there is no step to the plan and if you if you look at the health report in the senate report the legislative history of us here that we've cited they talk about the instance the statute says you take the average earnings for the twelve month period so you would say ok over the last twelve months he earned fifty two thousand dollars so therefore each week his earnings would be one thousand dollars and you would just say ok he worked he was gone for one week of military leave a thousand dollars compensation let me explain to you why this every time this violates this actually shorts the service member if you they've they've made it more complicated to short service members because they take for the twelve the twelve month look back they do is just to figure out the hourly rate but and so rather than being in the normal hourly rate if someone's worked a bunch of overtime it may raise a little bit the effect of hourly rate right because you're you're making more for overtime but if you only multiply that hourly rate by the forty hours he's normally scheduled for four you know at the start of every  actually results in a much less pay for that week then if you had just taken the amount of earnings he had made like if you take if you compare someone who works forty hours versus someone who works fifty hours every week they're always going to make less there's no possible way you can do the math to make the service member equal or better off under their plan it always shorts them about ten to twenty percent if you've made a bunch of overtime and say give me a weekly write you or add a week get and this is how there i've done the whole look back i've done two class action settlements with american airlines with united airlines and in those cases the position of those airlines was that you know there's there should be some sort of actual twelve month look back and they have what's called pensionable pay and they talk about it in their declaration pensionable pay is essentially doing that at true twelve month look back saying ok last last twelve months mr savage earned fifty two thousand dollars so his weekly pensionable pay is one thousand dollars a month it's simple every time he misses a week it gets one thousand and the reason why my client really never understood what happened is because they wouldn't tell him how they were calculating it this is an overly complicated way to to to to do it and you know at the end of the day what that means is that the service member if it's harder the service member has no record has nothing to point to to figure out if it was done