afternoon your honor smith pleased to court the substantive provision of the title seven's basic objective of the quality of opportune employment opportunities and the elimination of practices that tend to bring about a stratified job environment would be achieved were all employment related discrimination miraculously eliminated that's what the supreme court noted in burlington northern and santa fe railway versus white but until then we have the law to protect against such stratified discrimination by allowing genuine disputes of material facts to be tried by jury mr vincent mercer asked this court to reverse the lower court and remand for a jury trial based upon both the race discrimination charge and the retaliatory charge from ph h corp because he has exhausted his remedies of race discrimination even under the pseudonym or anti tripwire doctrine and because genuine immaterial disputes of fact exist regarding his retaliation charge such that his case must be tried by a jury of your honors and as to the first issue under the s process of filing discrimination charge the test your honor has four parts to it first that the allegations in the administrative documents have allege the same place of  was discriminating third there should not be a shifting of explanations and discrimination in the and accusations in the discrimination charge and fourth there should be clear references to the points raised discrimination your honour's this this issue is designed and these tests are designed as the supreme court has stated to not cause a pro se plaintiff to trip over themselves trying to allege what has happened in my client's case although the particular individual assisting him in in the maryland commission on civil rights to fill out the form apparently may have failed to check a race box however as we noted in our brief the racial discrimination allegations were made by my client substantively they were clearly delineated and and affirmed under oath by my client that he felt he was racially discriminated against and particularly he mentioned the words that had created this discrimination belief in his mind such being the slave ships and whips and the climbing a ladder as a monkey for going out and the fire hose being used your honor these issues created the context in my client's state of mind to file the discrimination complaint and it substantive substantively must go forward  honor opposing counsel cites evidence and technologies and applications and services company as a failure to check a box on a form creating a situation where the the allegations should be dismissed however your honor in that case the court said that there was very little evidence in the record too and very little allegation to say that there was a discriminatory motive and my client was a very clear as a pro se complaining but he felt that there was discrimination he was very clear when he was publicly challenge by the by one of his managers in a managerial meeting within fifteen days of insisting on the email apology he was publicly challenged and b rated saying quote you're not a team player that came on the heels of his protected activity or others and that is in the context of his discrimination complaint additional your honor the complaint  that my client set forth very clearly stipulated to title seven and as and it says that he felt he was discriminated against and retaliated against and so in the context that the defendant the respondent in the complaint from the very beginning of posed my client's filing under both racial grounds racial discrimination grounds as well as under the retaliation the protected activity process where my client went to her and then i'm sorry let me be it may be a little more specific because i didn't hear from much to work with can you point me to evidence in the record that this had was implicated or had anything to do with initiating the investigation of the call center incident incentives yes or are there is evidence in the record there is evidence that she was in direct communication with kimball then and she actually as i noted in the brief she actually participated in the review of the investigation there are disputed fact in the record whether or not she was directly involved you know if she was ok can you point me to the evidence in the record with respect to that point and don't take don't take and i will review that and provide an answer on rebuttal your honor and your honors i would also wish to point to the the general the genuine material disputes in fact  s i did in the brief i doubt lined merely for major issues and there are numerous as as was filed in the opposing brief over thirty pages of disputed facts is no question that he engaged should call for your honor the question isn't and the test for this court isn't whether or not he part perform particular duties that the employer wish to fire him for the test instead is whether or not he was directed to do that and that's the material question in fact actually it isn't there really is i read it he engaged in the in the behavior did he not and he was the other individual who was just the and this goes to pretax which i had a little trouble with in your analysis and you have two problems it seems to me in that regard he he was terminated he was treated the same as his white colleague was with respect to discipline for the call flipping incident and he was replaced by an african american female so that the poor the pretext query you have to you have to problems in your argument you're out of the court has held that the supreme court  and you know i'm sure better than anyone inferential proof process under mcdonnell douglas and you have the employer says race was the reason for the discharges not protection will and you look at one of two of the things you can look at is was he treated similarly to other people and who was hired as a result and in both of those instances this selection of the actions were few this ingestion that the act was taken on the basis of race and your honors if you wish to take that standard as a facial review the substance not taking it was if you get the mcdonnell douglas paradigm isn't it but it must include analysis in a factual determination your honor and in this case the court found facts to determine that those two big issues cleared the company of any wrong potential wrongdoing look at how that's how i think you have you have to get to some dispute about the discharge was pretext multiple issues as i've outlined in my brief not for that but but particularly here your honour's the white individual was fired after my client that's a key fact in this case and in the record your honour's in the investigation process what is stipulated to is a repeated reference that the white individual who was fired after my client was the only individual that directed employees to place calls on hold which the company tried to assume or tried to infer was a wrongdoing your honour's that action was e mails and then almost as if they are looking for something to find against my client they say this but mr mercer was copied on those e mails and your honor as we set forth in the record that is insufficient and  if a company wishes to cleverly manipulate the law what would they do they would do exactly what they did in this case they would look for someone to be a s is who was fired after my client was fired who was the only individual who actually in writing instructed the alleged wrongdoing putting calls on hold secondly or are they would replace my client with an african american individual and i would proffer your honor that that exit exam they why they did that they did it to assume a appearance that my client that they were not committing a wrongdoing but when all the facts substantively point to a dispute as to whether or not this was a a an investigation directed your honor completely towards eliminating my client because of his protected that claim yes it is true he did not check the box on his charge page two ninety five of the joint appendix nor did he include in his narrative any allegation even an allegation that could reasonably be construed mr mercer's terminations to his race and for those reasons the lower court was correct in dismissing the race discrimination claim for failure to exhaust and that conclusion is only bolstered by reference to mr mercer's complaint of the joint appendix and his civil cover sheet page thirteen where he references only retaliation said he was discriminated against the by five being retaliated so the lower court was correct in that regard even if the court were to get beyond that and conclude that mr mercer had exhausted his administrative remedies he has not established a prima facia case of race discrimination mr name has been occasion employee who was terminated on the same day maybe after mr mercer but on the same day and that is undisputed he was replaced by an african american as there were smith and again there's there's no context there was nothing in the record there's nothing no part of the story were placed but african american and then shortly after the position is limited he does say that your honor but there is nothing in the record that supports any ulterior motive to miss smith's placement in that that in a proof there is no evidence in the record that p h h approved call footing and allow me to maybe clarify so there are two processes in place in the may june timeframe and may mr mercer came up with a process known as tree asure or the special client services team that process involved when a call came in the agent would get basic information from the caller and then informed the caller that they would be they would receive a return call in thirty minutes mr mercer explains this process at pages one hundred three to one hundred six and it's documented in the record as hundred thirty to five hundred thirty six on a document that was in place instructing agents on how to form after that process after memorial day two thousand and ten mr names and came up with a call flipping idea and the difference footing is that instead of the agent taking the basic information and informing the caller that they would receive a call back in roughly thirty minutes the agents would flip the call to extension one six three one or skill set forty seven the same thing go by different names where they would sit in limbo on hold for sometimes over fifteen minutes that was the call flipping which is distinguished from the tree process mr mercer was aware of the call flipping there's evidence during the investigation that he instructed his agents to engage in coughing and that was the reason that he and mr names and were ultimately terminated so someone told he refers to race in the context of the leaders comments which occurred in march two thousand and ten he does not refer to race with regard to his termination all he says is that he was discriminated against but if the diff simply saying that i was discriminated against is that enough to encapsulate all the various protected classes then it would alleviate the need to remove the need to honor and the undisputed genuine facts in this case show that in march two thousand and eleven mr sillitoe made comments he made comments off off the cuff comments referring to movie ben hur and about a study by mackenzie and company the ben hur comment was in reference to the beat of a drum on a slave ship in this movie this classic charlton heston movie that most folks have probably seen both the nation of the classic movie too fair point your hon it's also on the speeded that he referenced the mckinsey and company study about monkeys climbing a ladder to reach a banana and well being part of that work what point did he make with his work force on that one the point he was attempting to make that there was a sense that he was a task master and he was just driving his workers to art and his point was his attempted point was that he was not beating the drum on that slave ship he was not trying to be a task master why don't you just was not enough you just say that to me in this room you need to say this to everybody he was pushed on that point and there it was that was not most pleasant  have a nice day i was just a threat mr mercer testified at page five zero six of the record that he took the comment to mean he needed to stand his ground to be courageous and fighting for the apology which the inference there is certainly that  was on his side and pressing for the apology and that's what mr mercer said himself at deposition and it is undisputed as well that mr and us helped craft the apology helped arrange the meeting with mr soluto and the diversity committee helped set the agenda and that mr mercer believes mr so we don't actually thanked him for his efforts once the apology was sent in may two thousand and then there's a fast forward to august twenty sixth when the term nation was implemented mr name soon and mr mercer that's a five month gap between the protected activity in march and the terminations so even a miss and it's made the comment your honor it's an isolated statement without a nexus to that terminations decision and that isn't not enough to put any sort of retaliatory paint on the employment action confess your honor as to that point he did not confess to doing any wrong doing what he did agree to is what i earlier attempted to say and that he did not direct it he was simply following a order from tim back and who was a temporary person put in charge him back and was put in by kimberlin who reports to my understanding is in the record reports to read and this and ultimately up the chain your honor to makan it's  material dispute in this record whether or not he ordered my client and mr newton azman and others to engage in placing individuals on on hold during the busiest moving season my client is very clearly on record saying he didn't agree with it he opposed it that's clearly in the record and mr naismith is the only individual who gave written orders and that's what i said earlier who gave written instructions to employees to do this  all in stride you're i think the record indicates that he he may have engaged in communications about the process but in terms of ordering any employees to do it i don't know that the record supports that i don't recall seeing that in the employer provided a password to what's called a skill four to seven skill four to seven is a particular exchange that calls were being placed into that mr mercer and his team could not have access without t now it's in dispute whether or not this particular heavy call volume you know provided an opportunity to place calls on hold and and whether or not that so called call flipping is a material dispute in fact indicates that mr mercer participated in cindy calls during high volume periods to another source i dispatched when he knew that there was no such this pa is testimony in the record in which mr webster indicates that he did do that so not what i just described there's actually an affidavit from kyle rhodes saying stating that to mack and ordered her to do it and she did not do it but my client objected to it and did in fact obey and placed calls on hold longer than the target of two minutes whether or not there were actual as you are asking  actual individuals he was transferring them to i think the testimony from mr amazement was that there were those individuals who were supposed to take calls and were not actually taking calls and i think that filed and i would say i would submit your honor that she did and there's she's actually part of the firing process but in terms of the initial initiating that's not the test because it was my question right and that's ok that's absolutely well i understand she's probably she's copied on the firing letter she's actually part of the confidential investigation under from page five eighty eight she's listed as a copied individual and she was intimately part of cording to mr sillitoe who made the agree to statements he pointed the finger to read and as the person who actually fired my client so you know the inference in the record is strong that she played a part from the beginning the investigation but i don't i can't point you to saying that she initiated but that's not the test here the test under burlington is not whether she initiated it but or whether a reasonable employee it's the reasonable worker standard whether or not they perceived that there could have been a chilling effect in the process and with fifteen days from the time that the initial in mail was sent to the time that actually began the process of the alleged of the statements by kimball then to the time  less than ten days business days after that when the investigation began under kimbo then which is in the record and by the way your honor she said she claims in the in her affidavit minor recollection in her affidavit she she does not claim that that she began the investigation however the investigatory notes in the case that and i read from page five eighty nine in the seal appendix that danny was asked by kim this is under friday seven twenty three danny the actually has been overturned in this regard burlington overturned the low case and i think that is clear error i think if you focus on the burlington standard of the reasonable worker in his deposition testimony he specifically says that he wasn't sure at first what she was meaning and counsel goes on in a cross exam to ask him when did the context happen and he said it was when i was beginning of the protected activity is not the measurement date it's the activity of when he demanded and insisted upon the email to be sent out in your honor my client sincerely believed that they could move forward his whole job was as a diversity chairman was requested by the company and his incentive insistence was with this new c e o to try to provide healing for not just himself but multiple complaints and not just of minorities which this is a sixty sixty percent minority audience in the baltimore area this is also the non minority of people coming forward with complaints kyle rhodes is a white woman who filed an affidavit in the record and she was outraged and she claims to have had a personal conversation with mr sillitoe and in that conversation she indicates that he made these inflammatory these defenses of these inflammatory statements which in mistress leaders deposition he he ok with that one that was actually ordered and kimberlin actually equivocates if you look at the investigative notes your honour's kimberlin is the manager who claims that she never ordered the placing calls on hold but here's what she says in her best getting that she claims that it was an on authorized use of that particular skill four to seven that she never actually said to place them on hold that long or similar words and she also clearly states is part of the plan and my client had been requesting of the new c e o and others for additional workers and they did not provide the level of additional help and so the end result was my client's call center team was inundated the testimony from tim mack it was one to four thousand calls a day and his team had a very small number of people half of which were were temporary students makan testified as well that many times did not show up for work and my client was informed instructed on how to manage that through various mechanisms including including skill four to seven and including being an informant instructed by mr mack and that he needed to if he did not have the assistance or the bail resources to place them in a coal hole system with skill forty seven and in the context of that your honour's  actual problem is is confirmed by other managers who had those discussions with kim bolin claims that for there was a discussion in the meeting where ford motor clown i guess you would say it's just it's just you and that's all that's the case here because the pretext is at issue and in the light most favorable of my client that has to be a determination made by the jury or thank you so