at this point i'd like to reserve two minutes for about a case involves race discrimination and race so she discrimination in the workplace and a hostile work environment very words an african american man is no longer employed with  was for over eight years has no husband nicholas lorenzo is a caucasian male and is still cloyd facility source brought this case as they were the lowest paid account managers at facilities source had not received a promotion to a higher position like most judgment and fall however this decision was flawed the most pervasive of the errors in that it was the court's failure to construe all facts in favor of the appellant's who were the nonmoving party when presented with conflicting evidence by whereas we stated that they were not objectively more qualified considering they are job postings are job descriptions that stated that facility maintenance experience was the most important factor was very relevant it was consistently stated throughout that job posting that  maintenance experience was important several of the other account managers who made more that they said were more qualified they had experience in other areas such as sales and the court focused on the sales experience consistently and this job posting or description said this is not a sales well the job posting wasn't consistent i mean at some point they changed the the qualifications for the position but as it turned out this fellow had not graduated from high school he had only half as many credits as he should have had in order to graduate but he had told not only this employer but his previous employer that he was a high school graduate and had made other misstatements on his resume so objectively speaking how can you say that at least from the point of educational records requirements that he was as qualified as the other people who were  minimum requirement not only were they asking for a high school diploma but at some point they switched to a two year and then four year college ok well he's complaining about not getting that too many couldn't have qualified for that well again there's the post and changed as you mentioned in the original posting to not have that requirement so at a point in time he was qualified to be a senior  manager in addition you provided evidence that there were other individuals who did not have a college education who didn't forward facility source did not run able to put forth any evidence that a high school diploma was required well i don't know what you do about a situation where it turns out that you know i knew and he didn't ever have the qualifications because he had lied about go on his resume they were there their position i take it is they never would have already been the first place if they'd that they would not hire someone who didn't have a high school diploma at that time and they also did not find our provide any any evidence that any customer service representatives which is what he was hired into were required to have  time went on he got he got rises and promotions and throughout all this it's not as if he never got any kind of a raise or promotion both of them did did they not they both did for several years until defendant doing smith was and was hired as well as defendant jordan wagner at that point the girl stopped they became account managers but they did not move forward past that there were nine to ten other account managers who i mean the basic facts or as they are the not disputed those too basic facts about education length of service those go for things is the conclusion from those basic facts that is the issue favor in that sense they he only compared or at the court only compared the plaintiffs to one other individual who became a senior account manager bilis busy plaintiffs put forth evidence that there was another individual who became a senior commander as well during that time and and stated that that individual did become a senior count manager the other side said she did not there is evidence put forward that she did and so that was a mistake of fact in that sense it should have gone to the jury because that issue stopped at the prima fashion case for failure to promote and mr and so did not get to go forward on the other elements of mcdonnell douglas cast and so it stopped at the prima facia case because apparently he was not as qualified and that did bring us back to the qualifications issue we also had a dispute not only with who was more qualified but they didn't put forth qualifications for several individuals who were paid more and for those that they did put forth qualifications for it was a self serving statement by defendant hayden which he did not attach any document of the qualifications so we take issue with that as well self serving statement was it within his knowledge to make the statements he stated that he reviewed either had personal knowledge or reviewed records but did not attach the records he did not state that he that inadmissible or what's i mean self serving is not an objection the fact that you filed something that helps your position i mean that's exactly what you're expected to do so what what is the objection to the hearsay evidence which should not be considered and if it gets there is that we believe amend much of it as hearsay considering he did not provide the proper foundation for the documents that they were kept in the proper course of business on hand was racially based because i don't quite see the evidence released direct evidence that it was racially based is there direct evidence well there were three nonparty witnesses that did state that they believed that the saw that there would be individuals that would come into the office and they be walked around plaintiff woods walked around plaintiff runs out and it was her opinion and this court has stated recently that opinions from nonparty witnesses should be relevant saw he was the only one was he the only african american there yes and he was only ok so i mean they may have isolated him for a reason other than his race that's all you say well they only did this to well the other remarks that they made just circumstantial evidence that that it was all based on his race and the fact that there's no other african american males in senior management whatsoever he everything cumulative together and that's what we feel that the court should have looked at everything came to the together and should have moved on to the jury to decide if these eight instances of racially based comments even it was just the eight remarks that the judge found that should move on to the jury to to find out if if it was sufficiently severe and pervasive because eight instances are a lot of instances and they should have been viewed cumulatively and these this is the same argument applies to the  yes and they had been for several years and it was known there one of the witnesses albert man was told we know who you interact with and it was she hired you that through his sexual orientation race or both for what you believe it's due to the race race issue sexual orientation has not come out as a reason but that is their association that's not a protected right moment correct and so it into the wage discrimination case this court has found that that such racial remarks to do play into circumstantial evidence a pretext that they were paid less than several other individuals in the court found that there wasn't going to question this court's business judgment and cited the texas texas case in support and whereas this court has stated that has never adopted a business judgment rule and should not just blanket lee except a business just justification this court failed to draw all reasonable inferences in favor or in the light most favorable to the appellants and said weigh the evidence and attempt to determine the truth of the matter appellants put for sufficient facts to know which a jury could reasonably find for them creating genuine issues cold so if you can't hear me please let me know and i'll try to speak up i did want to address some of the court's comments with respect to the application process in this case and how these two appellants actually came to be employees of facilities stores as the court noted there were significant misrepresentations on two separate applications the first application was an online application through career builder he was in this was the appellant gary was he was applying for an entry level position and in fact he did that twelve days after being terminated from his first job from his last job at medco and he was terminated from that position as the court knows for falsifying his employment application there in order to even submit an application to make the threshold to even get it to facility source he had to indicate that he had a high school degree or equivalent and of course he he misrepresented that which got his his resume out in front of the out of in front of the employer let me let me ask you this you started with this company  he was a customer service representative what does that mean he's in a call center they have a large call center up in columbus and so there were if there was an issue with perhaps a retailer who had a plumbing issue and somebody complaining about the service that was provided he's an entry level person he's taking phone calls and addressing it to the appropriate account managers and your account managers would be responsible for the account to address the problems building issues and things like that as well  so the question about whether these other people had sales experience when you get up to the level of account manager and senior account manager are you doing any sales up there are they pitching to new customers not doing pit to think we don't have to do sales to some extent so i think it's a valuable valuable qualification for any job this day and age but but the but the employer in this case really was not focusing on sales any relevant business experience was something that was looked at favorably in addition the evidence shows that they looked at relevant education business in particular if there's a business degree or some business studies there are a lot of individuals that were identified that were discussed in the briefing that that  had retail experience to somebody that that may have been in one of their prior customers that they that they would be able to have that experience of knowing what types of issues they have and they're required responsiveness that's expected from them where do you  sufficiently identified the factors that would be considered in determining what those qualifications were it's apparent from the deposition testimony that that the appellant's very firmly believe that seniority should have been the number one factor to be considered and that's why you know they took the position that they did that you know a year after their employment started they should have been doubled in their compensation and that by the time they assume this account management position they should have been making sixty four thousand dollars a year which no account manager even the ones that had master's degrees ever had so you know their consideration of what those appropriate factors are is their opinion this is an employer who took and into a fact legitimate nondiscriminatory factors into in deciding who they felt were best qualified and they and with respect to every individual that was identified as a comparative or they were able to to show exactly why they felt that that person was more or less qualified than th right i would agree with that you're on it and then fact in this case there's really not even a close call between any of the compared or is in either of the appellant's in this case and it's really they've they've tried to put the burden back on the employer to go through the entire list of every employee and show what the qualifications were comparative to them but in fact it's their burden to identify who those comparatives are and to show that they were equally qualified i think there's no question with respect to the appellant woods that he wasn't qualified comparatively to anybody because he didn't have a high school education and no person in that entire facility was hired without an education for about the false cation  background correct and even if you look at what the employer believed to be the case with respect to his qualifications which is what we did in our briefing even with a high school education comparatively speaking there is there really was no comparison that both the parents testified that they felt that when they took this position as an account manager that they were that the president c e o who had promoted them had misrepresented what what they're going rate quote unquote was for those for those positions at that time and they were told by bill hayden the president c e o that was forty thousand dollars and if you look at if you look closely enough at the documents and you look a year before gary woods became an account manager in a year after gary woods became an account manager and what those account managers were paid and you average those out it's thirty nine thousand seven hundred fifty five dollars and he said it's about the going rates forty thousand dollars that's what they were paid they were in fact paid a little bit above what the quote unquote average would would have been for all those account managers hired in that time frame and there's there's testimony on the record about the significant growth that facility source had seen in the first five years facilities for scuse me first started operating under that name in two thousand and five for the next five years they had twenty five to thirty percent growth each year and because of that growth they were able to begin recruiting retaining and hiring individuals with more significant qualifications both in terms of their relevant business education as well as their experience as i said the burden to identify comparatives is on the appellants and in this case it's been a bit of a moving target and during the course of the depositions they identified two individuals as being compared david sigman and mike rogers as the district court had noted david stockman was was only making three hundred dollars a year different from mr lorenzo and that was eight hundred dollars a year different from mr woods and so they didn't consider that a sufficient enough disparity in pay two to address that i think it boils down to like a dollar a day in three dollars a day respectively and then mike rogers was the other individual who was identified during the course of the depositions as compared to who was unfairly being compensated more mr rogers in fact has a business has a bachelor of science degree in business and business management and he also had ten plus years of management including some retail experience which was during the course of the depositions and mr zurich actually studied business at columbia university in new york city as well as ohio state university he did not have a degree but had some some education there as well as twenty four years of retail management experience the other individual who was identified in the briefing as a comparative was josh mr hall leko has a business degree bachelor of science in business administration and he has an account management experience had it coming in  comparative and why they were considered to be more qualified by the employer in this case i'd like to because i don't have a whole lot of time left and like to kind of turn to the hostile work environment claim i think it's important to look at the entire context and look at what was going on in this in this work environment and this is as the court has noted primarily pertaining to mr woods you know he described the comic relief that was going on in this workplace if you read the position it sounds like kind of a fun workplace they did some silly things that might not necessarily be the most professional but it was things that he very much was a participant in and testify that he really praised his role in that in providing the comic relief for his coworkers who very much appreciated that as he testified and he did things intentionally to try to be crazy and outrageous while he went through his work day testified about how the whole organization and his coworkers enjoyed to kick back and cut up there was testimony about the supervisor would offer time off for employees if they went in and sang a song to the those individuals working in the call center and in response mr woods gave them my pink cowboy outfit complete with a cattle prod of some sort for him for him to wear to sing which he did not do thankfully but from the testimony you can see that it's pretty clear that that he really enjoyed to be silly in that he enjoyed making his coworkers laugh but then you read the briefs and he complains that he was being called cheeky which is exactly what he appreciated in himself and his role in the in the workplace you see it's hard for us to read a cold record and see how he reacts to it i mean the words could be interpreted different ways and i mean that's something almost you need a jury or a trier of fact to say because it could be in humor and just or it could be serious demeaning hurtful  even remotely come close to what should be sufficient to satisfy a hostile work environment and some of them and some of them even if there's not one this one's not too bad but when you i don't think so your honor and a lot of the a lot of the comments that were made there's no context to them and some of them were never addressed during the course of the deposition this this comment about fried chicken i don't know what that mean i mean was he eating fried chicken in the lunchroom was he making kool aid i have there was no context other than that he likes fried chicken and and that's something that was racial stereotype that's what it is whether they say it in a demeaning way or whether they're joking around i mean maybe they're just joking addressed in his deposition after he was given multiple opportunities to make sure he gave an exhaustive list of anything he found to be offensive and then it appears in his affidavit i don't think it should be considered since it's inconsistent with his prior testimony but even more importantly on the on the hostile work environment claim the appellant's both went to human resources in october of two thousand and twelve and allegedly reported that they that they felt that there was a hostile work environment going on and the and mr woods very clearly testified there was nothing that happened after he went to a human resources the joking in the comments stopped as soon as that happened and i found it curious that he almost seemed disappointed that the stopped because he did appreciate the the atmosphere there and he well we didn't know about these these at that point in time and he had he had complaints about twins meth in particular that he felt that joints meth was not treating him fairly that he discriminated against him and the testimony was that as soon as he made that complaint that those that all the all the comments and then thing offensive had stopped that he used the term hostile work environment no claim of general discrimination is general discrimination i don't recall that there was a reference to a hostile work they were being discussed which i thought was interesting if i could turn for a moment to the the promotion issue they've indicated that they feel as though they were not properly promoted to a senior account manager position as as the district court noted neither of them had actually applied for it once was not qualified for it on this issue of katie there was no testimony with respect to whether or not she held a position to side with katie can say the issue was that those in those with knowledge said she had never been as senior account manager mr woods mr lorenzo have no basis for saying that they in their opinion they thought that that was what she was and i don't see that that creates any issues of fact so we would just ask thank you started with the hostile work environment discussion that was just taking place council minimized several of the comments that were made and how plaintive felt plaintiff once felt by these comments several of these comments you mention were started with you people he did not feel this was funny he interacted he joked joked with his coworkers but not all of it was fun and games there were other things he was called and he was told he looked like d the cheeky was describing his physical attributes and and he was called the eye of the storm you people are dramatic and the racial stereotype the fried chicken in kool aid that was independent evidence from a third party she heard that being  said much of this council discounted because it wasn't mentioned in the deposition but it wasn't his affirmative duty to have to bring that up in the deposition he did not have to volunteer testimony and it was not directly a different than what he stated in th he is another person who was friends with gary woods he became treated better afterwards after he stopped interacting with plaintiff woods this us something in addition counsel said that there  was no evidence that sigman rogers were all not more qualified whereas they did not have any facility maintenance experience still remains experience was important the plaintiffs were trained in the roles they had facility manes experience this is a finance facility maintenance company they were objectively qualified going into the more subjective qualifications of whether or not being a sales representative is helpful that's not what she came in at this point that's her jury to decide it's specifically said in the job description this is not a sales role going back to plaintiff woods not having graduated from high school this is not a