this plaintiff should have surmounted summary judgment in the court below because the case at that point of bounded with factual issues at every stage of the analysis that was applied by the magistrate judge granting summary judgment we presented evidence of direct discrimination as direct a form of discrimination as i think he has got right i mean he did he have anything to do with with her last call what do you call them did the disciplinary things are called russians coaching coaching great i mean yeah he that was direct evidence but he was he wasn't a decision maker what we think the record showed was that in this particular store and i think the model is the same in all of the wal mart stores these employees the hourly managers like mr richardson was for twelve or thirteen years are always managed by a group of managers that in that included and generally includes the store manager and the assistant managers that are assistant to the store manager you pour the so you say you can impute the ages statement to somebody else after he's gone in the context of the other conduct that miss richardson complained of and that the record supports i think it's absolutely reasonable to attribute the conduct of any member of the management team to the other members because it all seemed to unfold in a pattern that included not only the direct statement made by i believe his name is mr s truth but also the generally abusive conduct was that the store manager mr darby was carrying out against miss richardson and taken together i think i mean to to say there is no question of fact at the stage of summary judgment as to the question of direct whether there's direct evidence of discrimination but if i think it's unreasonable i mean yes i concede that the individual the one member of the management team mr s truth who made that one statement that was the most direct statement that he was not the person that wal mart used in the final moment when the terminations decision was i guess he was still here he left and he was always at that point he was still a very much a manager at the store where she was employed i think he has left and has since been moved to a different wal mart store but but me he was involved mr s truth was involved multiple points in these purported coaching's that as we've argued in the brief never even existed were never documented as part of the personnel file and will that clear defending with because that's exactly right coaching's are not documented there they were not part of the personnel file they were produced for the first time by wal mart in defense of this litigation well that's a good time to produce them isn't it well she didn't contest that any of these events occurred except for one there i mean she contested every single event in terms of whether there was ever a coaching as argued in litigation by wal mart but she admitted that she had meetings and their answer is that they don't put in the personnel file they have the system that she that's what they say it's exactly why we have state laws that require and dictate what information has to be made a part of personal files is to avoid the kind of information as to mccarthy she didn't just didn't contest the fact that this  this conflict of interest event occurred and valving her daughter she didn't contest that the hazardous material mistake occurred she didn't contest these multiple unscheduled scheduled an excused absence occurred that's what we're concerned about she can argue that that's not enough but she didn't contest that those events actually occurred in fact figure apologized for some of it when she she didn't and there we have this piling on of and now new character is ation of facts that yes the facts whether there was ever any factual occurrence related to an absent a c a series of absences when she was hospitalized yet not she doesn't it's true that though those facts actually occurred she did they were never never made the subject of the coaching or a disciplinary action according to the plaintiff while she was employed before this litigation arose when you look at each and every one would have i'm sorry to be skeptical but what would an employee think when they're sat down by a boss and criticized for one two and three and four in this case manipulating and associate to get a computer returned the missing work  ut that you say that's not she would not understand that to be the label might not be important as a coaching but that's not what happened according to her that she should she never she doesn't concede any facts that can be reasonably construed as manipulating a return of a laptop she there are basic facts regarding her having had an interaction with somebody what i'm saying is when you look at the actual factual record closely enough to analyze the the fat basis of each of these purported coaching's these facts are substantially disputed at the point of summary judgment by the parties there the only instance where miss richardson concedes that there was what appeared to be a coaching you know disciplinary conversation was this was the matter of her absences that she gave notice that the employer the employer conceded being on notice ok of the of the reason for the hospitalization happen or that they were not treated as coaching's at the time or both i think i would and want to be a man trying to avoid the question but i want to be clear the we certainly are saying that they were not treated as coaches at the time even construe them as incidents except for the at the absolutely or gets to all the employer the law requires an employer to come up a reasonable reasonably considered judgment it doesn't have to agree with your client's we know this right yes and then your client's obligation that the summary judgment stage or whenever is to come back to with evidence to the contrary yes and in each of those as to each of those instances she is the only witness that remembers anything i mean with with a couple of exceptions about these facts first of all their witnesses show up like most sophisticated employers do and say we don't really remember anything about any of these proport coaching's she provides a intimate factual explanation of each one life threatening condition and they notified the store and and she is but what about this statement by her did she dispute that she said i understand by not properly packaging the hazard material that it could have created a serious impact on our store i need to be more careful can scan ing out and to be really turned i think that is i will review the s o p and follow their god lines i will use this is a learning tool to go forward so that i do not make this signed it for pete's sake there is an electronic documents judge there's no signature on any of these documents they're not part of the personnel file we're back to judge white's good question about that she denied that piece of paper she should she denies that way in the discovery record but but i can tell you that she would concede if she were here today that she may have missed packaged a mosquito spray product but that very year she says she's was something that she recognized as a coach as a result should does not absolutely does not concede that and her records that are part of the personnel file reflect that she was evaluated favorably every year that these were never the subject of the annual evaluations that are part of the personnel record eliot you're saying that the elite lawyers and that requires that these be part of her file the michigan maybe it's not the facts and in defense of litigation now construct a what purport what they purport to be a progressive disciplinary record and what is this online system it's all within the control of the upper level management one mark we could never know we can hear the answer from yes but your time is expired discipline and rather than go through we have all the briefs third question yeah i'll get to the points that were being raised in a counter argument i think the question was the coaching for improvement process is that right now it's the regular disagree that these these documents are not in her personnel file that's right they're not in her personal file her physical personal file their maintain electronically act defines personal records so if wal mart had been served with a request for her personnel file what would it produced it would have produced her hard the file what's in that file but also any other personal record that in order to create a dispute a fact that would destroy the basis for summary judgment is that the is that wal mart came up with these after the fact that they were put on the on line and that and in fact these coping thing all this information never occurred that twenty i think he was telling me is that it was created for litigation purpose and if that's their position incorrect and the record does not substantiate that the record is the record show that they were in effect filed electronically when they happened yes ok the record shows both through affidavits from supervisors who issued these coaching's as well as the plaintiff's own testimony that there was a process whereby this information was presented to her plea is told this is coaching then under our policies this is your second coaching in twelve months yes the coaching process the way it begins is that there's a violation of a policy the supervisor go logs on to the electronic coaching system with his or her password inputs what the policy violation is in puts various information into it then brings the associate in to sit down and review the coaching with him or her at which time the associate has access to what we now have that's been printed it's just not printed for the associate there in front of a computer screen they see it they oftentimes have to type  in for the second and third coaching's they have to type in an action plan how they're going to improve on this particular issue and that was done in this case she sat down at the computer she logged on and the words that were judge or re are the plaintiff's words rebus words this richards that's right so those all the i think it's the second coaching about the hazmat issue those all cap words under action plan those are miss richardson's words that she typed in and she we know she typed it in because i believe her deposition testimony confirms that in secondly she's the one with the password that had to log in is that true the first one of the first coaching is second the first the employee to dissociate only types in an action plan for the second and third coaching the first coaching is effectively the associate doesn't have to discharge that occurs on the fourth here doesn't include a request for completing an action plan obviously she says it's gone it's gone that's right that's right so does she have any input at that point  we know anything about that in the file about the day she was discharged we know that she was presented with the discharge at at a meeting with two of the definitions with two supervisors and she didn't open door it so wal mart has an open door process whereby you can challenge any sort of employment action that you encounter in the workplace including a terminations she didn't ever nation challenge to was not challenged she didn't raise it with anyone person who made the alleged ages to comment was adamant as truth adam allegedly made that comment in october of two thousand and twelve he transferred to a different store nov two thousand and twelve  she missed richardson was terminated march two thousand and thirteen so he had been gone from the store for for five months on the same management team he was not in the same management team at that time so i think where it was confusing is  that there was some talk about other comments or other other evidence mr darby who was the store manager was there at the time but he did not allegedly make any sort of his comments michigan state courts saying that this is what the standard is that's right and so at this point there isn't a michigan state court that has addressed the issue that i'm aware of in the same language or that's right so the  have used the same language that they used before grows after birth in other words they've been using the same they've been using the same standards no they had a different standard they were not using but for it has to i'm sorry it's just that the standard is a me but it's not but or it was more substantial factor or something like that in that the one different language then but for but compared the standard in michigan to that of the standard used by federal courts to interpret the in other words it appeared it said a step the standard is similar it appear are the won the case the the case the michigan appellate court case that i'm aware of that's been in these briefings suggest as though the michigan courts would adopt a gross standard now but i don't believe that that issue has been addressed in this this court the sixth circuit has used that standard in the three cases that i cited and then there's also several unpublished decisions the double in the marsh decision where the but for standard was applied to both the elliott larson act as well as the claim that we were pending in that case and part of the rationale is that michigan courts have deferred to the federal court substantially on the issue of believe it's established by the record but it isn't disputed even now that miss richardson received the third coaching the coaching for attendance she acknowledged it and by acknowledging that coaching she implicitly recognized that there were two other coaches preceding it because why else would she be at the third stage so that's that's just a factual issue that i don't think was highlighted well enough in the breeze they want to point out to you you know if it were already the district court welford action plan that's right for that one is that it tends when yes if she had been in the hospital for a life threatening problem and they found this out later and not before i mean one might end up in the e r without notifying one's employer that he that one was not going to be present the next morning wouldn't that be taken into consideration wal mart's policy does take those issues into consideration  so absences that are approved that are for medical leave don't count as a currency ok so what what what would you do come in with a note from your doctor after the fact and it would then be excused if you leave there's a whole certification process that the department of labor where i'd just you know i just fell down the steps and got taken to the e r didn't notify anybody it was going to happen but couldn't come to work on monday and tuesday happened on the weekend didn't feel like you know i was either in the hospital or whatever and i come in on wednesday with a note from the doctor would that have taken care of  a few points or one the answer is no not unless it's a not not unless it's approved leave so covered under some statutory requirement so if it's x it is if it can't be counted under the law as an absence because the a that i guess that's one more what we're you're used to the policy about there's only so many days all right we get that but what about is it a punishable a disciplinary thing that you came with the doctor know if an absence isn't covered by an exclusion so it's ok if they have this general rule and you got it but that's about your absences that's right about coaching is it even if it isn't a current it could be an occurrence that is subject to coaching yes now here she's here she said i i was in the hospital and i wanted to provide a doctor's know she was offered the opportunity to do that she never did that then i know factually it's different covered up since it would have been counted as an occurrence if it wasn't and i fully covered absence then it probably would have been counted as an occurrence but we don't know because she never engaged in that process and beside the point the point here for our purposes appellant doesn't even challenge the coaching's as being discriminatory that was conceded at oral argument at the district court level page forty five of believe it is but beyond that nothing in the record suggests that the way that that that  absolutely untrue but i will check that deposition ok you say it's not there untrue that i'm sorry the issue i should have prefaced that these coaching documents were never made a part of anything that could constitute electronically or in hard point and not received it yes or well ok so that would be yes then and i can tell you my office first thing we do in every employment case is request a copy the personnel file for this very reason they're not there their managers conceded in this government that they're and you were not also given printouts of the system no ok certainly not any of these documents that arose in the litigation ok go ahead had she at some prior time requested her personnel file and not received these i don't know to be honest ok but i can tell you they conceded in discovery that these were documents that would could only be accessed by management they were not made a part of anything that even they claim to be the counsel that those are two different things you can have something that the company regards as a personnel file that is held in three different places in management can only look at one section of the of the file the question is that when when someone asks for the file who has a right to see it did they get all three sets of documents i agree but what i'm saying is they conceded in discovery that that the that they based upon that definition these would have never been part of how that disclosure because they they produced to them to question the defendant in their deposition when they defer defending this lawsuit the first time they ever arose ever ever arose the faster you saw them yes yes and this was argued this was argued below yes there whether gross would affect this state's substantive law it certainly has not the standard that continues to find expression in michigan's employment cases is a factor was the receive an opinion thank you for your work