runners mr voltz asked this court to reverse the district court's decision granting summary judgment in favor of a pelleas the district court in this case was blinded by the severity of the accusations underlying this case against mr bowles and as a result committed several serious errors first it determined that the cat's paw theory of liability could not be applied to the h r director of erie county margaret rudol him she was harold l to him mr voltz was a director of the job and family services department and murder rule was the director of the h r department there were two separate departments within the school was an operational person she's the r person for the whole county or whatever i suppose that's one way to put it you know and yeah they're both under the scope of the erie county board of commissioners the what you're saying is that the board just deferred her and that's exactly what i'm saying i'm saying that the cat's paw theory of liability is a political when a biased supervisor commits a discriminatory act that is intended to cause and is in fact the proximate cause of an adverse employment action that's the ruling on see it in style b proctor hospital and what you call the discriminatory act here is discussing this with the board it's a recommendation of terminations to the board as well as her failure to recommend any other potential action that was available under the erie county policy is this the only thing the court below says about this is and this is on page thirteen of the district court opinion further rudolph was part of the  committee that recommended the board who are played it defies logic for rudolph to record and plaintiffs be hired and then one month later recommend he be fired because he is mayo and hispanic the cat's paul theory has no application here that was the different courts explanation that it's strange in this world if all of a sudden developed a discriminatory attitude toward him with them up well i guess i have a couple reactions to that the first your honor is that the paragraph from which you're reading i think right before the section you read also notes that mr voltz was not under the direct supervision of ms rudolph he was under the direct supervision of the board so that's the first ground the district court cited for a white cat's paw is not appli second ground is miss rudolph supposedly support for mr volts throughout his career including this appointment to the director position that would preceded his terminations a month earlier but the record evidence in this case doesn't bear out that conclusion at all that's there's a genuine issue of fact as to whether or not ms rudolph was supportive of mr bowles his appointment to the director position but it is true isn't it that most cats paula cases and i've been on some of these for example you have a police hierarchy and somebody who was the supervisor and has a history of run ins with a subordinate then recommends and the police chief does the firing isn't that the more usual case well and that's precisely what happened here yes i mean well well but isn't she she number one she isn't the supervisor but number two what's your history of discriminatory animists and that is what the the recent hiring and so on and undercuts to some degree i do i do see what you're saying or are i guess i don't not sure if there's a prototypical cat's paw set of facts but in the chapman veto hotel next america case which is a recent six circuit case decided after style the sixth circuit applied the catspaw theory of liability to an h r director that was not the plaintiff's direct supervisor because that h r director had a position of influence with respect to personnel action so it's not so much about whether or not the person the biased supervisor was directly supervising that particular employee it's more about whether or not they are supervisor in terms of their agency and scope of employment completely the evidence that she was  problems with mr rudolph that alone couldn't necessarily warrant a finding that it was based on his protected very specific but he did testify that after the anonymous complaint that was filed with the erie county board of commissioners in two thousand and eleven was investigated and he was cleared of all wrongdoing ms rudolph told him directly that this command presence that he had was an issue as the building meaning the department job family services was full of estrogen and as a male he was not going to survive she then that was supposed to be your word yes correct she then criticized the same command presence in writing that statement was before he was chosen as directors correct and when ms rudolph was deposed in this case she was asked specifically to describe what her role was on this committee that ultimately recommended that mr bowles replace judy the heart as the as the director of the department and her characterization of her involvement was that she was mostly the facilitator she asked a couple questions from a set script so in ms rudolph she asked a couple questions from a set script that swear she was mostly the facilitator so when ms rudolph was asked to describe her role in the supposed that support she said that she was just the facilitator she organized the she scheduled the meetings etc but she was not owed or make a recommendation the city this committee collectively the testimony shows that the limited number of he was a member of it but when she was asked specifically to describe her role she said she was mostly the facilitator with respect to the ultimate firing was she the only one made a recommendation or was that a group also her nation is the only one that's in the record erie county administrator mike bixler he's no longer with the county so i should say former administrator he was present at the meeting the erie county sheriff terry lyons no longer there but he was present at the meeting but neither of them remember offering any sort of specific recommendation to the board but because this was a meeting with a bunch of people it wasn't like she sent a piece of paper and somebody stamped piece of paper  that's true your honor but the meeting with the board of order of they elected i mean they're the political for the whole county correct that's correct but then for better or worse they know they have  an issue well rubber stamping something to well i think that it is actually because the commissioner monaghan who was the president of the board his testimony was that he relies on rudolph to make these recommendations and apply the erie county personnel policies that was his testimony i think if you look at his deposition he likens him self to a c e o and he designates these sort of responsibilities terms of deciding what to do to lower level employees like the h director commissioner tom ferals testimony was very clear he said when asked about the terminations meeting he said i believe margaret was there and she explained to us that you know mr voltz was a probationary employee he wasn't available to perform his duties as the head of the department of human services which is a precursor job and family services so and like that he was incarcerated and we didn't know when he was getting out and it was probably the best option for us to terminate him a lot of folks that were involved in this terminations can't remember precisely what was said but there are notes of the meeting in the record and the notes show that this meeting lasted no more than ten minutes and that it was convened margaret rudolph had a recommendation a pre separation or pre disposed or a conference was considered and rejected which is a clear violation of your county personnel policy instead he was removed and replaced with a white female but this this litigation is only  of internal harassment as i recall the record there was in effect to saying ok you're cleared but you better keep your nose clean henceforth who was in that meeting in committee well there's a lot of conflicting testimony on this point your honor and i believe it's one of the many reasons that we have genuine issues fact that mr voltz remembers this meeting as simply one in which he was told that he would be cleared of wrongdoing i believe the commissioners were involved and margaret rudolph and mike bixler ok judy engelhard may have been there ok but it was a kind of we won't call them a committee but it was a group of people it was a group of people that but the the issue of what sort of warning was communicated to him has been greatly embellish by the defendants in this case mr voltz remembers nothing more than commissioner shana go telling him to be more like him settle down with a family at the time mr voltz was unmarried he still unmarried and mr voltz didn't think that there was much to this the defendants are now trying to recast this as a warning that nothing no further issues could arise in his employment which is the same issue of whether or not a warning occurred arises later on when he's appointed as director he's given the job and defendants are now saying that he was warned at this point that he was to have no issues even though they were giving him this vote of confidence in a promotion but mr voltz testimony is that he met with the commissioners he was offered the job he then had a meeting with margaret rudolph and mike bixler and was told it was about the formality of accepting the job and what his pay would be commissioner monaghan says that he told mark rudolph and mike bixler to communicate some sort of warning but margaret rudolph unlike bixler don't remember doing this they still are is the county administrator he's he's the he was the county administrator for the thirty five years is no one there because he's the top bureaucrat under the political people that's correct and so the the interesting piece about this is that margaret rudolph does remember precisely what was communicated this meeting in margaret rudolph said that she told mr bowles to be careful about socializing with subordinates because he was now going to be the director of the department and it's more difficult to discipline your subordinates when you socialize with them that has nothing to do with the actions that are underlying this case so to concern yourself about the statement that you read the earlier about testosterone estrogen what did she say about it was she that's what she she conceded if that's what she said and can't remember exactly what she said in response that i know that she had knowledge that she wrote that mr voltz had a command presence in the written report as a result the were the words that you you won't survive which was at least what you quoted you don't know how she responded or if she was even deposed on that i don't believe she was deposed on that specific issue or you'll please the court my name is marc fisher well i'm here to represent your pelleas in this case i guess i want as deviate from what i intended to talk about and talk about a couple of the questions you asked mr votes as attorney so there is this discussion that you mr votes as attorney about this conversation that occurred now a conversation did occur before he was at the time he was promoted to director but before he actually took the position but and frankly and i'm quoting here from passion it goes deposition on page thirty three he says what i was upset about i'm sorry i'm wrong one i'm quoting from mike brooks there's deposition he said on page one thirty seven he says i don't remember exactly the words the commissioners used but to generalize they were concerned about any of impropriety outside the job that would hit the newspapers and give a negative connotation the county that comma the department he was made aware of this but did he really need to be made aware that  put on notice that if you're arrested and incarcerated and charged with rape that could have negative consequences on your position as the director of the human services organization that helps children and women in the county could he have any doubt that it's absurd that they're arguing that there is some notice requirements or that the employer improper failed to follow its progress to discipline policy this kind of misconduct by that head honcho in this department again i follow that and i sympathize a lot with the with the county at the beginning of this the question here is in the end the charges were dropped appears that at least unless i missed some stuff that there was no evidence submitted that his problems were anything other than sleeping with people crazier than he was for the  joke on that so that the submission is that these were false charges and in the end he should have been taken back well first of all the question for this court is whether the commission whether the employer operated acted with discriminatory animists when it terminated him now whether or not the charges were false at that time although that does come into play when he reapplied for his job but let's look at it to answer your question your honor i think it's important for this court to be mindful of the explanation that mr votes himself gave during his deposition about how he got into this position mr valls testified that he was had to have sex with this woman stephanie cota loopy because in two thousand a three years before this incident she had falsely accused him of rape before a false accusation filed a report something he had never told the the county until the date of his deposition so well after he was terminated he felt compelled to have sex with her whenever she so desired and did so for approximately three years and why did he feel compelled  testimony is a little unbelievable but it's not rebutted in the record he said he felt compelled because if she filed another false charge of rape that would jeopardize his job he knew what situation he was putting himself into and showed incredible lack of judgment by continuing this bizarre relationship which is exactly the reason that justifies the commissioners not rehiring them even though the charges were dismissed or dropped  recanted if you will so the employer didn't acted completely appropriately and more importantly there's no evidence of discriminatory animus here or about this case org which seems to be board up on her judgment and her recommendations i think the board did in part rely on her the board relied on the county administrator as well the board also as judge boggs pointed well i certainly am not that i certainly my first response is she wasn't his supervisor so that would require an extension of stop but i certainly recognize the scenario under which somebody in her position could be catspaw if you will  there's for example specialized knowledge that the cat that says well i know that sam did a bad thing here i take it the facts such as they were the next day everybody had the same facts pretty much that's correct and even though the meeting was only ten minutes long the county sheriff had contacted the the county administrator the county administrator and spoken individually with each commissioner the day before they knew it was coming and keep in mind this was on the heels are correct keep in mind this was on the heels of what another police report that came out at the time that the investigation by margaret rudolph and the prosecutor's investigator polish nick are completed that in january of two thousand and eleven about the same time  sandusky register newspaper reporter called pat shen ago one of the commissioners and said did you ask him did you know that there was a criminal police report filed by mr voltz is girlfriend not m somebody else from new year's eve of two thousand and ten few weeks earlier mr shand to go and everybody else in the county was unaware of that mr shelley go intervened with the reporter and convinced him not to write the article if mr shand ago was one of the ultimate decision makers had any discriminatory animists that's not an act that makes any sense now i want to go back to the cat's paw theory though on the factual part of it as opposed to the legal part of it so here here here undisputed facts in the record in two thousand and seven murder rudolph signed off on two promotions for the appellant as the h r director in two thousand and nine was one of three people on a hiring committee included her big slur and bill monahan one of the commissioners that unanimously recommended mr voltz for promotion this is the is this the  sort of events that your adversary was quoting with respect to well she was just a facilitator i don't know if she was referring to that because this is the assistant director position i'm talking about the director position was in two thousand and eleven but it is pretty interesting that they are arguing downplaying her role in the work she did to unanimous be part of the unanimous recommendation for his promotion and then point a finger and say you had all this unbelievable influence over the county administrator of thirty years and three county commissioners it's their arguments inconsistent so in two thousand and nine she comes she makes that recommendation then in two thousand and eleven she's invest assigned to investigate this report that wasn't anonymous complaint but again the judy angle hard to director of the j f s at the time is the one who said i don't feel comfortable letting this go and asked the prosecuting attorney's office to review that  those allegations along with margaret are sexual harassment complaint we all look into it exactly and be ignored because it looked like it came from somebody internal the way it was written margaret rudolf if she had discriminatory i think could have found a way to recommend discipline but into the january two thousand and eleven she doesn't recommend discipline in june of may in june of two thousand and eleven she unanimously along with recommends volts to be promoted through the promotions to assistant director and then to director or by the same committee rudolph bixler judy engelhard participated in the first one in two female and for the assistant director and director position both times mr votes replace caucasian females so the cat's paw doesn't even work here and all of the claims like she the communication was bad i mean that doesn't go discriminatory animus in there and even the estrogen comment is first of all the testimony murder rudolph gave is and i'm sorry i'm not going to remember the actual page of the deposition was that this was to help mr vaults to let him know that his command presence as a as a police officer and he served as an auxiliary police officer won't work in in an agency like that there is no way that this court can take that get into that they did not get into that but she does not deny making those kinds of statements as advice to mr vaults and again if that's evidence of discrimination why did she not try to step in and prevent him from being promoted to any questions you have but but some of those arguments in the brief that the appellant raised about pretext so the appellant has said that they were shifting rationales the employer gave different reasons for the terminations but that's not the case here what happened in this situation is sure the commissioners and murder rudolf and mike bixler didn't use the exact same words but the district court correctly pointed out that they all related to the same underlying conduct saving the school in maker case and it was serious inappropriate acts by a director that caused distrust and unwonted publicized isn't the case of griffin v finkbeiner that this court decided where first employers said it was it was poor performance and then later said it was the person was terminated for a layoff due to lack of funds policy deviations progressive discipline in the pre disciplinary prop policies or mention the progressive discipline policy doesn't mean you get a reprimand before suspension before a demotion and then terminations it means the punishment has to fit the offense and there is no way that this and in order to find that the punishment didn't fit the offense in the context of this case there has to be some discriminatory a not just that the employer might have used bad judgment which we don't think they did of course he did it they did of course in deciding to fire mr both for this reason disparate treatment is one i really want to touch upon because there are many comparables alleged comparables at the appellant tries to rely on and these comparables are these individuals are not comparable based on this court's prior decisions first of all none of them in gauging the same type of serious misconduct second to none of them were s rly situated in all relevant aspects of their jobs there were five individuals in the department of job and family services that the appellant cited two as comparables again none of them were arrested or charged with a crime or incarcerated but all of these five individuals pursuant to ohio law three twenty nine point zero two two were classified civil service employees and this court has decided in russell v dre back that classified employees under civil service are not comparable to  classified employees with respect to the there's some discussion in the briefs about fallback rights and i think it is the primary by he says for which your side says  that if this was not a classified position that he started from as assistant director is this the january twelfth resolution of the board establishing certain positions as example is that a resolution for two thousand and eleven is that or nine deaths eleven at the top this is january twelfth yes it's resolution zero nine eleven but it's adopted january twelfth two thousand and nine is what it says right that it dad is the apply to the position because there is no person in it which directly and under ohio civil service law it's generally speaking the position not the not the person to make sure that i was on the right absolutely and couple other points that i really want to just mention in my last few seconds i would really ask the court to pay attention i didn't address all of the alleged comparables but again none of them are compared of one other department head from two thousand nine hundred ninety seven fourteen years before he was mr b terminated and second of all that same actor inference really does apply heavily in this case thank you moran you have your remaining time for rebuttal thank you your honor so obviously i don't think i have enough time to address everything that counsel for the defendants pelleas at the most important reference but i would like to discuss a few things the first thing that i wanted to address is that counsel said that mr voltz his behavior as described in his deposition justified their failure to rehire him but also said immediately preceding that that the defendants didn't know about this until the steps so i guess i would know about this didn't know about this conduct that was described to mr bowles as deposition until he was deposed so i'm just missing this what's the conduct in the deposition is the the conduct that mr voltz described in his deposition counsel for defense just said that that conduct justified the reasons the reasons for it and i guess to contact the of what happened that is that he went to kelly's island came back went to the one woman's house and went to the other woman's house that was known you're saying it was the reason for the three years in between well mrs cullom is quite aloof and his saying that he was afraid she would always get him in trouble if he didn't continue to sleep with her of all these years right that's what i'm referring to go and i guess this is in line with what the defendants have previously done in terms of shifting their explanations for what occurred i know that counsel for defendants downplayed the shifts in explanations but i think this is a really important point the defense claimed that mr voltz was terminated because he was arrested that's what they stated in force and guidance and the defendants had to respond to the e e o c charge that mr voltz fired they said that he wasn't terminated because they're lying about it precisely because they say he was terminated not because the arrest but the conduct underline the arrest as described in the police report every single member of the terminations meaning that made it their deposition that they didn't have the police report in the meeting so that can't possibly be the justification for the defendants did lie to the sea about what happened here see