reason for her termination supervisor miss neely who is a convicted felon who stole seventy two thousand dollars from her church and the court credited self serving conclusory statements in decorations rather than crediting ms he riches testimony and her deposition in the depositions of defendants witnesses in granting summary judgment to defendant the court also credited and counsel's characterization of various e mails that it claims somehow is conclusory evidence that there was a year long performance problem with ms howe for each when you look at the e mails themselves they show that they were not directed not all directed to ms helper edge individually and in fact some of them are directed to her supervisor miss neily and talk about just the general division of duties in the department miss miller who's the administrator acknowledged in her deposition that the emails were the sort of e mails a supervisor sent on a day in and day out basis subordinate employees saying here's the task that i want her formed here's the priority i think you should do them in and they're they're not evidence of any performance issues or disciplinary action and when you compare them to e mails of want to miss help as coworkers as or off the e mails about ms has her offer between supervisors talking about the actual performance issues that they have with her job and how they're going to remedy that situation and talk to ms ask her off about it and the e mails about miss how french there are similar in mail showing hey we've talked to her over and over and over again  i mean you were big knowledge there the matter before the court on summary judgment right yes and so we know the standard perts programming summary judgment the court looked at the fair amount of evidence the deposition testimony looked at the exhibits looked at the the package led the court then to issue an opinion where it broke down the various you know the standard for deciding this case and we're particularly do you quarrel with the court's analysis well in terms of the court finding that there was that miss however it's hasn't established an issue of fact that defendants proffered reason had there's an actual basis for it and they simply the court simply just latched onto going to the very bottom line which you know we go through step step step and then we finally then it's your client's burden to show that the reasons advanced by her employer or pretext for x ok so you're going to focus there and that's where you should i think yeah ok and in this case the court last chance to defendant's characterization actually counsel's characterization of the e mails as definitive evidence that there were performance problems and so was there anybody with this performance problems for as long as she had an exact i that's one way to show pretexts you know you have someone just like this and for whatever reason they didn't  person and then your clients disciplined and as i understand the case you're comparatives of people that have come on pretty recently and the performance problems haven't lingered as long well it it with respect to the comments i've been making  focusing on the first method of pretext which is there's no factual basis that we dispute that there was a year long performance issue in that there is no evidence of having a year long performance issue but going to comparative wars i me n you think there was nothing her performance was just as good as anyone else's that's your view but i think she was performing her job very adequately and that may have been a warning was unjustified yes the miss nearly admitted that there is the factors underlying what i mean you're saying everything was she was as good as everybody else so there's no very there's no evidence of these some other things that miss neely put in her declaration that formed the basis of the the thirty day warning the thirty day warning she admitted was based on false pretenses but that was not a quote not from her but she she admitted that the factors were negated or that they didn't exist i thought it was that some of the things were proved not to be true but i also thought the testimony showed that many of the problems that predated the thirty day warning existed after the thirty day warning well in her declaration she added the the additional thing that there were that the thirty day warning stood because there were additional problems but there was not any proof that at that stage and well ms so first just fits that there were any performance problems and at this stage it's reasonable there's reasonable inference the jury can draw that there are no performance problems let alone a year long performance issue  what about delinquent assignments in unapproved over time after the warning period was up by use is your point that she's denying that happened or what your point you know as to the delinquent assignments i think you're talking about a stack of got to know that day about the time that they fired her had they waited to the end of the day there probably wouldn't be the sack of delinquent assignments but we don't know because they fired her in your understanding is that the stock was only that day's worth of stuff yes and then how about  approved overtime on the unapproved overtime if you look at the e mails prior it talks about having them come in on the weekends and work together on on over time to catch up on some of the backlog that's not due to miss home fridge but because of the fact that you know the younger employees and weren't working out and other things already that so as to create a genuine issue material why did the unapproved over time there's no evidence that they ever discussed it was her or told her not to work overtime unimproved i mean there's nothing that you didn't have to do with facts i understand that but that what we don't have is an e mail saying i need to work overtime there's background that says we're working overtime to do all of these things and so there's an inference that it was approved there's nothing in writing that explicitly states it was an approved we all from or that evidence you i can get you the exact say but i believe it's one of the e mails from may of two thousand and eleven just a month and a half or two months before as to the other port point judge certain brought up in terms of the compare tours you know in this case they're trying to distinguish miss as her off from this hell for it because she's in some sort of probationary period is an initial point she was already out of her probationary period when you look at the time record she had been there past ninety days but there's also nothing written about this policy of allowing probationary employees more leniency in the ability to transfer versus long term employees but also common sense tells us that you know the manner and way business is operate is they have probationary employees so that if they don't work out they can just get rid of all companies would want to keep longer term employees and so for them to say that it's ok that we treated this as or off years younger better use the word common sense i was just about to interject the same phrase and exactly the opposite direction it seems a really common sense to me that yes it's true probation allows you to dismiss somebody after six months but also six you know it's not unusual to have more mistakes when you start a job but if there are lingering for four years that seems like a very different setting you start to wonder but if you're anus person to do the job effectively in this case a even  doesn't claim that performance problems were lingering for four years for myself which she had a wonderful employment record up until the point where miss miller hires a significantly younger employee  trains her and then she's automatically promoted to her supervisor but if you look at compare the e mails about missing as her off she's doing the same mistakes over and over and over again and refusing to perform the tasks that are being asked of her over and over again and when you compare that to the emails and points to that it's not the same kind of thing they're nit picking you know there's an hour of what they call an improve over time which we disputed but they're not of a case that says it's the kind of compare a door that will establish tribal issue of fact over a pretext one person's on probation the other person's been there for several years well offs situation again she wasn't on probation but if you look at the case low with mitchell and martin they don't have to be exact correlations there miss asked her often as how first rounder the same supervisor they were in overall the same department where they were working and they were performing similar job duties miss however it would help out in front reception occasionally during day off is there any significance those in terms of the nine involuntary dismissals that's just a conclusory statement and a declaration there's no we don't have any information as to who they're claiming were involuntary or what the reasons were even if they are just same department disregard in terms of evaluating what they claim is under spewed it hiring practices that are not discriminatory and yes because there's nothing that thank you your honor justin flamm on behalf of defendant abilene north west ohio orthopedics and sports medicine inc commonly referred to as n w o shorty and i would submit that when you look at the record evidence and you stick to the record evidence is a very straightforward case the only point at which it gets more complicated is if one takes up a merry hell for his invitation to look at some of the theories that she has asserted and to one of your questions judge sudden to plaintiff's counsel it is an issue of points being argued on grief that are not supported by the record at hand here are some of the what is what's your response and she's making the point that you know the reason to believe there was not there are no facts that show that she was performing poorly that the thirty day warning there's an acknowledgement that some of the reasons for were not legitimate reasons or have been corrected reasons so will walk us through what are the things before and after the thirty day warning that are in the record certainly  disputed and not disputed early in the district court mentioned a few of these the district court did not cover all of these issues however if you go back to august two thousand and ten that's when the counseling first begins as shown in the record here there's an e mail about keeping up with  that had to be done so that the medical practices medical records were up to date you move from that hold that this this is the change upon the the the new supervisor taking over the tenor of the of the evaluation of ms helping to help bridge changed that's correct there was a new supervisor around that time the issue that they have tried to argue here and have really just alluded to it by incorporating some arguments from the briefs below is a cat's paw type argument the problem from that argument is that there is no evidence whatsoever that shelly neely the supervisor at issue harbored any age based animists or any enemas of any kind toward ms helper to personally that is absolutely missing from the record so the notion we had a change  back to your question judge sudden some other issues that came up the performance evaluation in december of two thousand and ten highlighted some problems with mit miss health which is performance some of the same types of things that continued through two thousand and eleven these were attention to detail she is not a comparative or you're not similarly situated because at the time those issues came up she was working in a different department she was up in the front reception dealing with patients dealing with doctors the undisputed evidence is that it's a highly stressful stressful to do the work in medical records and it was less demanding paula miller testified similarly that the front reception role was a very stressful job so in terms of the standard that's applied there when you're dealing with patients dealing with the variables you have there with the doctors who are on the practice in the patients who come in it's a very different situation than it is to be scanning a stack of papers that need to be in someone's medical record as a rock was not transferred out was she transferred out of them lot of these problems she was a ven things would have a short period of improvement and then would go back to the old problems again there is no record evidence whatsoever about claudia azarov having any of those same problems and no record evidence about any problems as her off at in medical clinic all the same problems concretely you said she's counseled she has warnings give me examples of attention to detail i think your honor was one of the things mentioned there was an overtime issue mentioned in one of the emails with ms as her off so that's why i say in response to did margulies question that there were some superficial similarities there but when you look at what they were doing the roles they were in and the amount of time that is out or off at work there was the district court noted she had just come out of her probationary period i'm asking and health for each what is what is it that she continued to do after counseling after the warnings give a concrete example only attention to detail issues your honor failing to keep up with more concrete attention to detail may two thousand and eleven were not keeping up with the scanning april two thousand and eleven shelley neely her supervisor has to stay late to complete work that merry hell for it was supposed to have completed herself february two thousand and eleven patient files ending up in the wrong charts so mr smith goes to his chart and there's actually a record for mr jones in the problems that go back to the issues mentioned paying attention to detail keeping up with work those types of things that are outlined in some of these e mails some of the e mails are directly to miss selfridge some of the e mails are between the two managers shelly neely and paula miller discussing the conversations they've had the steps they've taken to address these issues with ms help bridge and your comment about the july issue that was discussed a little bit earlier in the plaintiff's argument these were the unapproved over time issues and the taking of shorter lunches than company policy required and when that was addressed with miss health for each year older couche your lunch being too short yes a actually fairly common employer policy you have to clock out for a certain amount of time so it's an unpaid lunch period and it's also a way to manage the overtime hours that the company wants to limit the issues came to a head in september of two thousand and eleven when there was a complaint by a patient who had requested certain records that were not provided in response to the request because it's failed to follow internal protocols for making sure that the records are handled the right way that is undisputed there is argument about whether or not that was something new process or not in the reply brief but there is absolutely no evidence provided by ms hell for it or pointed out by myself from any of the  witnesses to suggest that it did not actually happen that way as with the stack of unfinished work that was found just a few days later next to her workstation she says that was just one day's worth of stuff there's no evidence to say that your honor in the reply brief there is an argument it is just an argument it would only result in the what if your evidence our evidence says that there was a stack of unfinished work this comes out i'm going to show you that anyone say it was more than one day's worth of work i mean if it's that it seems kind of funny to get in trouble for not finishing a day's worth of work when you're fired halfway through the day it's unfinished work your honor so it's not unfinished unless it should have been done by that point in time that was the concern that was raised when shelley neely found that lit do you i don't know the time and i'm not sure that's reflected with the exact detail in the record you're on the over timeless she meant she was suggesting that she was asked to do the overtime making it seem like it was just a bureaucratic mistake in terms of whether you actually got approval or got approval before you submitted the overtime request the notion is that she say i need to keep up and the bottom line from what the record shows here is that she wasn't keeping up with the job her answer was over time the company's position was we want to limit the overtime because there's a direct expense to n w or that comes with that but i take it that mrs health for each had enough time between the time she was discharged and the time she filed this you filed a motion for summary judgment to find out about the performance of the replacement in was discussed at some length in that deposition the plaintiff's counsel took so the opportunity was there are there also of course plenty of opportunity to take written discovery and look into the record to see if there is something to show the had the same kind of pattern that merry hell for each did of working in medical records and having the same repeated problems that the record shows on an undisputed basis merry hell for to add it is not a fact dispute that comes from the record it is a characterization that comes from counsel and this is in the briefs and the argument is that only the april two thousand and eleven written warning should be considered discipline because that's the only one that looks like a formal document that that's the only thing that we can look to then to count against miss l for edge and everything else should effectively be ignored by this court because it's not on a form and doesn't say discipline but what you have is a record that shows both written communications to miss  performance issues you have contemporary e mail exchanges between the two managers involved in this situation in the terminations talking about these problems memorializing near in time to discussions that were had with ms helford about these very problems none of that is disputed so you will search the record in vain to try to find any evidence in which miss hell fridge says or points to an end in this where she can say that this thing did not happen this overtime issue did not happen this unfinished work did not happen all of those things are in dispute but she argues the inferences can be drawn differently than than than you suggest maybe john yes you're right we hear the term inference in the brief quite a bit we heard it in oral argument what i would submit is that they're not asking for inferences they're asking for a nullification of the n w all witnesses and they are affirmatively asking that individual witnesses be discredited on summary judgment based on several things such as the background of one witness so a witness has a criminal background according to myself which is position you should never believe anything that that witness says on summary judgment even if there is  case here to dispute that fact the other argument we see is that the declarations submitted are supposedly attorney drafted even though there is no evidence in the record to that point regardless though there is no rule against attorneys being involved in the drafting  declarations so the notion that she is requesting is not just an inference based on facts it is wiping away the record evidence that is not disputed in this case and it is based largely on the request that witnesses be discredited which cannot be done on summary judgment it is based largely as works is the credibility problem arises only if they have some evidence and the other side they have some evidence then all bets are off in terms of whether there's a dispute as to fact yes or rather they have no evidence it doesn't matter how bad this person is if they say something we have to believe it i believe that to be the case or out of the summary judgment stage is not the time to be making credibility determinations the issue that they'd quibble with as to the witness implying that she's not an honest person because of that background but when you look at shelley neely's declaration and look at the facts that she outlines there is nothing elsewhere in the record that would negate that nor is there anything that neely with this taint of ages and or age based animus that is pushed aggressively in the briefs they make a cat's paw argument but again there is nothing to suggest that shelley neely had any problem with mary helford on a personal level or any problem with myself which is age or any problem with people in the protected age group in general the comment made at oral argument was that he was a manager brought in who was substantially younger than itself which that's true but what they are effectively asking the court to find with that argument is that anytime you have a younger manager supervising an older employee and employer in the protected class that we can infer age discrimination and i would submit there are no cases that would stand for that proposition the evidence about the hiring and terminations practices of n w as submitted and is also undisputed they quibble with the level of detail they apparently want details as to why every one of those terminations was made exact ages we don't have that nor do we have any dispute however that that is in fact the hiring practice of n w of the record doesn't have that where it was asked to provide responses to that question no your honor that issue was not requested in discovery that was something that was put in there through paula miller's declaration because we had this notion that get genuine issue back but she did seek that that's correct your honor she mentions five specific employees and says here's how i know that there was age bias the company was trying to drive out older employees you mentioned five people and five people only two of those people upon deposition questioning the child miss helfer it admitted were not even terminated and of the other three she said she did not know virtually anything about the reasons for the terminations and paula miller's testimony fills in that gap as to why those other at least two of those three  terminated one was because of a timekeeping in attendance problem the other was because the employee was looking for a job while on the clock before the period in question you terminated more employees under forty than over the right  addressing the terminations of younger employees first one of the reasons that it wasn't asked for discovery is because the evidence wasn't produced until after discovery in connection with their motion for summary judgment so at that point in time ira misho french brought forth evidence of older workers being having questionable terminations whether they were forced out in resignations or were in voluntarily terminated what defendant has failed to do is produce the evidence of those records showing us that those questionable terminations based on this health purchase testimony were not question along with that information of evidence of any performance issues after the thirty day warning we talked about the one instance in july of two thousand and eleven concerning overtime the other incidents that defendant claims is evident of performance issues happened in september of two thousand and eleven with a new process titled bubbling it's a new process mishap  testified to in her deposition that it was a new process and that it was unclear whether it was her responsibility or ms neely's responsibility or one of the newer younger employees and so this whole first disputes that the e mail of september eighth two thousand and eleven shows any performance issues and so after she completes the thirty day warning there's no undisputed evidence that she had performance issues and in terms of  t counsel talked about in april and may she was placed on the thirty day warning at the end of april and she was taken off of it in may and so end up yo pointing to these other e mails in may as evidence of performance issues why would they take her off of the thirty day warning if she continued to have her four minutes issues they could have terminated her or issued another thirty day warning but it wasn't a problem back then not until she filed this case where these alleged performance issues apparent to defendant or anyone else i believe on the time thanks to both of you for your help for argument's embrace we appreciate it the case will be submitted major in