the morning morning may it please the court my name is susan kohler and i represent the plaintiff in this matter mary doucette and i'm from the law firm of holland an associate this is me this case is an appeal of the infer from the evidence offered that the reasons given for her terminations are not the true reasons but a stub to fuse for discrimination in evidence and see a quick procedure arson the briefs for some reason this case are designated under seal these briefs for some reason not to be a banner of public record or did the clerk grant leave to file them under seal the clerk did grant leave to file them under some under seal i believe that any concerns about this hearing that she would have filed something and so i'm not saying the hearing should be closed i'm wondering whether the briefs should be open but ok go ahead go ahead on so you're out of the case plaintiff's position is that the evidence when viewed  whole and in favor of miss dissent creates a genuine issue of fact whether doucette was terminated because she is a woman and in particular because she is an older woman and in the course of my introductory argument your honor i will i will cover the similarly situated comparable employees issue and the sex plus age claim issue primarily and i will rely on the brief primarily for the other matters miss just that was fifty five when she was terminated in november of twenty eleven she had worked thirty one years in morrison county seventeen years as an assistant jail administrator in october of two thousand and nine she received a performance review where her managing of financial records and records management was deemed exceeds expectation a year later she was receiving multiple disciplinary warnings that led to her terminations in november of two thousand and eleven in essence plaintiff's position is that morrison county assembled a group of expected and fixable billing errors related to a very small portion of her job and then disciplined her for those errors until it had a record to justify her terminations in this matter do so that does not need to disprove  reasons given by morrison county for her terminations she only needs to establish a question of fact that her sex and her sex age played a role in morrison county's decision to terminate her now mr starr is in a very difficult situation because the morse in county will be able to prate out a series of documents saying that she had made mistakes in the course of her work and that she had committed various transgressions even though the transgressions related to a very small portion of her job which she is claiming is that morrison county was exaggerating those incidents to build a case for her terminations and that her alleged conduct was no worse than other jail employees whose performance could also have been criticized the challenges that employers generally don't keep a list of employees who could have been disciplined but were not disciplined and so this this situation for misuse that was confounded by the district courts disregard of relevant evidence that she was being there were only fifteen instances of other employees in the sheriff's department being formally disciplined since two thousand and six and the parallel in here in this sheriff side which were the people that went out on the road and then it had the jail side the appellant's count was only of the employees on the jail side because it was a it is a parent's position that it would be the people and the employees on the jail side who would be similarly situated to her and so that the numbers that should be used are the numbers that relate only to the jail side and that's where the disproportionate discipline becomes very obvious because there were thirty to thirty five people on the jail and over the course of five years there were only four people disciplined five times one of those was an alcoholic another well that was the primary one that you know obviously a situation that would cause harm at the same time miss doses that prior to or terminations had been disciplined six times plus then her terminations which would be number seven so the disproportion  disproportionate amount of discipline imposed upon mr said becomes very obvious in that certain circumstance and with that in mind i would like to you're not challenging the errors that gave rise to these instances or you know your honor we are not i'm sorry no question here about the billing errors and in history as it is the errors that were made by the pellets i'm not sure i understand your point if you if there doucette had been a male and particularly an older male that that conduct would not have received the disciplinary treatment that it did we will admit that she was not a perfect employee but she also cited other instances of other employees in the sheriff's department in the sheriff's department on the jail side who committed errors or mistakes in the course of their responsibility that would be equally vulnerable to discipline if the discipline was being distributed in an even handed way number one that count of fifteen does not include miss disc that's disciplines i don't believe and if you only look at the jail side mr cent as an older female employee w disciplined far more than any of the other employees and that actually leads to what's your best example the district court setting aside there were eight disciplinary actions against men and seven against women since two thousand six and therefore there is no evidence of disproportionality your honour's i guess you say well if you add in the set and it's just proportionately female is that your whole argument or do you have some specific employee who's a man who you think did the same thing doucette did without discipline yes your honor i mean first of all we do believe that the proportion is obviously shows a focus on her her behavior more than on older men behavior and especially if you look at just the jail side now in terms of a specific i will cite two specific employees who are deemed similarly situated and from the plaintiff's position the law is very very clear as to how you begin to look at who is similarly situated to somebody the law says that you look at who the decision makers are you look at whether the same standards are applied to those people and then you look at whether or not the myth if there's misconduct involved you look at whether that misconduct is at least as severe and frequent now mr sets position is that the employees on the jail side of morrison county are similarly situated to her in the sense that they are also subject to discipline by the same decision makers lieutenant moneer and sheriff whetsel there is very clear testimony in the record that whetsel said that he was the only one who could issue duce discipline and that despite had no authority to that to do that mr set also was subject to the same standards as all of the other employees on the jail site and i'll get to specific names in just a minute  they all were union employees they all were hourly employees and they all were subjected to the same progressive discipline and to discipline and terminations procedures mandated by their collective bargaining agreement so presumably they were all expected to meet their job responsibilities so in that regard miss doucette is similarly situated to the other people in the jail side including specifically the s t s crew leader mr brymer and a correctional officer dale shroud now the defendant's claim that because she they did not have the same job title that they could not be similarly situated there is nothing in the law that requires the same job title for persons to be similarly situated as long as they have the same decision maker the same standards and then if there is misconduct involved at least is severe or frequent then it becomes a question of fact for the trier of fact to determine whether or not discrimination has occurred with respect to mr brymer mr doucet claims that he tested in her declaration that he engaged in multiple violations of safety code in supervising at the the prison her crew that he was responsible for well for including working without safety vests or hard hats and having inmates use chainsaws without protective chaps she also alleges that mr brymer had three annual reviews in a row containing deficiency raised ratings with respect to chronic processing standards and she also claims that mr bremer failed to receive certification for proficiency on equipment and training that was required for all correctional officers this one example shows an employee who declaration should be considered in this regard i know the defendant will say that the declaration is merely an allegation it is not her declaration which is admissible under rule fifty six contains her statements of fact about mr brymer performance we also would cite dale shroud is another example although i think that brummer example is sufficient to show that there was a similarly situated employee who was treated differently say that he was an older male she was an older female and we would claim that that that is sufficient to take this case to a jury i think i will stop here and reserve my remaining time to respond good morning please the court counsel my name is danny and he wrote and with the law firm of quinlivan and hughes and i'm here in behalf of morrison county let me first address the issue that was raised by the court relative to filing the documents under seal i believe if you look back at the district court record you'll see that our motion for summary judgment was only partially filed under seal consistent with an order from the district court relative to the minnesota government data practices act and some of the information that was relevant to discovery but not public had to be filed under seal and so we did do that with portions of our summary judgment motion not the entire motion itself but the way the district court processes work is we had to file direction of the clerk's office versus it being sort of partially filed under seal for those portions of the record like we had done of the district court so when we got to the point where we were filing our brief the same procedure was in place again after consulting with the clerk it i just wonder whether that state statute governs i mean if there were a trial in this case with the courtroom be closed when those instances are i'm not sure about never heard of that there's a protective order in place in the district court and the language from the protective order refers to matters being filed under seal we can look at it if you're saying that you don't think everything should be under seal than a minimum it sounds like some of this material should be publicly file then maybe one of the parties to address it but i mean in writing and we can figure it out why don't you address the merits of your urine or couple of things i want to point out is  druce that has routinely made much of the fact that she has a long history of employment with morrison county which is indeed true but what is also true and which i believe your honor pointed out in one of the questions when mr koehler was up here is that there is absolutely no dispute that mr set made errors beginning in january of two thousand and seven and errors that were both deemed to be significant by morrison county which she was told she needed to correct and which she acknowledged had been made that's all very significant because while an employee's prior performance history is certainly relevant to an issue as to whether or not the court could draw an inference of discrimination that history becomes less relevant when there's also evidence of misconduct which clearly there is on this record scuse me  doucette fully acknowledged and admitted the errors that she made and it's not for this court to decide whether or not those are big deals are not big deals there's a very strong line of cases that says a court does not as a super personnel department to oversee whether or not the employer should consider an infraction by an employee to be a big deal worthy of discipline that's the employer's profit of an employer like morrison county has the right and the ability to determine what parts of a job skews the what parts of a job are important and need to be paid attention to more precisely by their employees and that clearly happened in this particular instance the record is very very clear that mr set was repeatedly told that these types of errors that she was making were not going to be acceptable to the administration in the department so it could come as no one being warned and being told several times that these errors were going to be the focus of review and going to be highlighted by the administration that they actually followed through on that and made decisions relative to discipline associated with mrs druce that's performance what about the other folks that she says were similarly situated yes and that particular issue your honor  a couple of different things we have we have argued that there's no evidence of these employees being similarly situated at either the pretext age for the inference of discrimination or perhaps even more importantly at the i'm sorry phase but also at the pretext age and that distinction is important because it's very clear by case law that determining whether or not an employee is similarly situated is a writ scuse me is a rigorous standard phrase that comes from a lot of the cases that it's a very rigorous standard is there anyone similarly situated to her and there may not be misuse that if you look at the deposition testimony she was very clear and it was a very long deposition she said quite without any hesitation nobody else did her job nobody else had the same job responsibilities that she did nobody else could do her job can virtually though she said she could do the job the other employees that work below her in the department now this caller has made the argument that doing the same job is not a prerequisite to the similarly situated statute or student standard  but it's not the point that they're not doing the same job that we're really focusing on it's that you set made objective undisputed repeated errors on a critical part of her job that her supervisors had told her and warned her about for years by the time of her terminations conversed only the individuals that she was referring to  generically refers to what i will refer to as sort of subjective errors in the performance of their work nothing that she said demonstrates a clear violation or of a directive that was given  she wasn't asked to give every instance where she thought another employee misbehaved and wasn't disciplined but if you look through it she refers to it as having asked for examples and she gave one example not the examples that she gave in her declaration by the way which is really the point but if you look at the deposition i gave her every opportunity to tell me every example that she wanted us to consider as being evidence that someone else did something similar to what she did and wasn't disciplined for it mr the claims that mr brymer violated safety policies is never mentioned during that deposition so to come in at the eleventh hour when faced with a summary judgment motion with a fifty page declaration it was properly disregarded by the district court because it was inconsistent with that deposition testimony or perhaps more importantly simply putting something in a declaration doesn't automatically make it evidence if you look at the summary judgment standard it's difficult talks about it has to be something than mere of beermann the burden has always been a m that in this case she should have done something more than simply file a declaration that says these are my thoughts on what happened and my observations she had an obligation throughout discovery to a deuced independent evidence case that's a very narrow normally that would go to credibility wouldn't it it may go to credibility which would not be a basis to disregard it which is your basis to say it's a credibility question i do have some cases that you can't contradict your deposition at the last minute and put in an affidavit afterwards that's considered maybe that's what you're that's really my point is that when you when you look at the deposition transcript as a whole i didn't simply ask mr set give me one example of something another employee that you believe was similarly situated to you did but what didn't result in discipline i said give me an example and she would give me an example i would say give me another example and finally at one point i follow up with a question all right is there anything else that we haven't already talked about that you think is relevant to this particular issue and the answer is no so there is a there is an element of it being inconsistent her declaration again coming  the eleventh hour i want to get back to the question about this record of the discord consider the declaration she considered the declaration to the extent it wasn't inconsistent with her deposition testimony according to a footnote in judgment gummer's order i want to get back to the the similarly situated question that was raised and i think it sort of strayed from that in order for an employee to be similarly situated the case law is also very clear that the misconduct must be of compare comparable severity and frequency there is absolutely no employee within the department who has a comparable frequen y to the errors made by mr set in this case and that's that is very undisputed mistress that points to a performance evaluation of mr brymer were it says that he should improve his booking procedures what the the what record also shows however is that mr bremer wasn't responsible for booking on a day to day basis as an s t s crew later so during his performance reviews they said we want you to remain someone like miss doucette who a part of her job required her to do bookkeeping and to not make errors that she was repeatedly making but a small part right i mean isn't an undisputed it was five percent or so of her work no your honor  five percent is the is the figure again that came from misuse that's declaration which is inconsistent with her deposition and which is also inconsistent with the job description which says it's a twenty percent bookkeeping and things like that are twenty percent aspect of her job so the parties disagree on what percentage is actually the bookkeeping element of no i don't believe there's a disagreement what we have is misuse that saying that despite the fact that her job duties her job descriptions as twenty percent she only spent five percent of her time on the things that are at issue which is sort of goes precisely to the point it doesn't really matter if it's one percent or ninety nine percent of the job as the employer the employer gets to decide what part of a job is important and what part of a job should be focused on by their employees in this particular case there is absolutely no dispute that mr that was told repeatedly that not only is this part of your job important but it's something we want you to focus on and to avoid making errors and she made repeated errors in that particular area so by by even paying mind to a claim that it's only five percent versus sixty five percent or twenty percent the court then is stepping into the role of acting like is that a big deal or should that be a big deal to the employer which is not the court's role again that's that line of cases that says that the court doesn't get to tell the employer what's important or what should be important to them they just have to come in and say all right is there anything about what the what the employer did that infers discrimination in its decision making not the actual decision process  itself i want to also point out with regard to dell sure out it's ironic to me that they would raise him as a comparison or when the record is very clear that one mood misuse that did complain about something that mr short did he was disciplined for it so to suggest that somehow he was treated more favorably is simply inconsistent with the information that's in the record  mcdonnell douglas slanted in our brief says that an employer can refuse to rehire somebody who engages in illegal activity only if that same criterion is applied alike to manage to members of all races in that circumstance so the question here and what's happening is exactly what i predicted and stated was the problem in this case when the plaintiffs assertion is that other people who engaged in chronic failures to perform responsibilities relating to their job were not disciplined of course there's not going to be the same record that or that there is for her when it appears that the employer specifically focused on her singled her out for  numerous mistakes that indeed wear a very small part of her job and so i think this points out the problem and it points out the importance of looking at the evidence offered of and allowing a trier of fact to decide whether or not those comparatives are similarly situated in the sense that their conduct is at least as egregious if not more egregious than the conduct of which the mr set  which never resulted in any payments required to be made by the county and the counties stated that those mistakes were embarrassing to the county or impacted their relationships with other people but completely failed to re ut her testimony that she had excellent working relationships with other counties and that these kinds of issues were the kinds of things that came up all the time in a very fast moving and vironment with respect to the  deposition testimony and mrs do sets declaration the judge dropped a footnote and said that she was discounting parts of the declaration that were inconsistent but never articulated which part she paid attention to and which part she did not pay attention to and i would assert that that is contrary to how this court reviews whether or not it's fair to discount parts of it of a plaintiff's declaration because the declaration is evidence just as deposition testimony is evidence and i i looked when i was sitting there and i know that at the very end of her deposition mr burt asked mr set whether there was anything else and she said that's all i can think of right now or that's all i can remember something to that effect saying i've given you the best i can do today but there may be other things that come up so i don't think that the declaration or that deposition testimony should be limited and that the declaration should be given effect and