please number thirteen three seven five zero angela summerfield versus jan gorney ag in her personal and official capacity as franklin county coroner arguments not to exceed fifteen minutes per side mr close for the trial court erred when it found the two male employees who were work technician at a work technician supervisor having the same job duty and title and supervisor as the appellant it was more technician released a wrong body to a funeral home after they incorrectly read the name of the funeral home on the release and did not examine the release order well the other read i i think when you read something that are just not to read it all you have a better chance of getting the right outcome if you just don't even look at it than you do it if you read it in you you mix up a last name that's similar to the name of another  no because that leaves out the precursor facts the precursor facts were that the attendant arrived so i was here to pick up the baby maybe the baby an adult and you know you say the facts of the facts of this case the facts of this the facts of this case yes the precursor facts of this case the appellant that asked the attendant i don't have the releases please get me the release notes and we're familiar with the facts i think there are lies the difference to facts is looked at the form that came in on the fax machine the other guy did look at the form so mistake that is perhaps more understandable than not working a form at all is frank smith funeral home versus frank hill i mean one can say i mean it was careless but you know one can see how that might happen and i just want to give you the opportunity to explain why that mix up in reading the form is just as bad as not reading the form at all it is i start explaining order i think when you read a form and there are two different names it wasn't jones and johnson it wasn't johnson with an e johnson with an oh it was smith and hill they picked up the wrong for they read it they called the wrong funeral home but they had another bite at the apple they had to bite at the apple was that when the phone technician showed up from the funeral home from smithfield home they'd looked at the form again in the form again had wanted to help and again they released the body to the smith funeral home and you said earlier they released the wrong body but isn't it that they they released the right body but to the wrong people that's a distinction without a difference at deposition i specifically asked dr gorney akc can you release the right body to the wrong home and the answer was no i mean i mean it's still an error i'm just saying it's a different error it's not releasing the wrong body it's releasing the right body to the wrong hope understand ok and but to fall that logic is somewhat pejoratively we had two forms that were faxed in for the appellant one of them was for the right body the other one was for a body that was not to be released but to the right so you know again i think that's a distinction without a difference in one can fit or the result that that that very different result happened and because of the date something that happened that could as part of her reason for terminations that she did not blame the appellant for either the unfortunate illegal cremation by the the funeral home or the subsequent results it was for the release of the body only that's the first lack of remorse with that part of the mix i don't know that lack of remorse was ever discussed in the litigation in this matter it  honor in fact if she was in the perception at the time you know people react differently to emotional trauma whatever that it would have been the only thing i can say is that that was not my client's attitude throughout the entire practice this litigation but to go back to your question regarding that this discourse previously looked at comparable severity as the conduct involved in looking at versus united parcel service and comparable severity would be releasing the wrong body and they released the wrong body both the more technician the two males and the appellant the real question becomes is is it a question of fact where is the question of law for the court to decide whether or not those circumstances i e reading a form and getting it wrong or not reading a form that you have already is something that is not a question for the jury but as a question for the court and i believe bobo and looking at that specifically and looking at reeves which they also cited said when you have a material wish to a fact that that enhances their the necessity to send this matter to the jury and that's what the jury should have looked at the jury should have gotten a chance to see whether or not the two circumstances one where you look at a form twice and still release the body is warranting of one no discipline for one of the verbal or a written warning from the other and number two the appellant in this case with no prior discipline of this kind whatsoever being terminated for that especially where stand forth and kessler that yes she did she made a distinction that this court has already queried me about regarding the having a release form for one  body to be released and the difference was that there was no release form for the other body to be released those so just to be clear here when we when we previously were talking about releasing the wrong body it was wrong in the sense that there was no authority to release the body that your client released here where as in the other case there was authority to release this body they just released it to the wrong people that correct that is correct that was what their argument is but i mean is that also the at least the underlying facts have i stated that yes the underlying facts are correct ok in that there was a release form for the other body there was no release form that was signed for the body that was released by the  but again it's it's how you phrase that particular question that determines whether or not you're going to have comparable conduct or not if you're looking at the outcome two bodies were released two bodies were released improperly and there was not proper authentication nor proper documentation to release that essential you're saying ok you have two situations that have all of these different facts and you're saying we only should look at the places in which the two of them are indeed similar and not look at the ones that are now what's the law in terms of what is comparable mean doesn't it usually say it needs to be comparable in all relevant respects all relevant aspects but again bobo then you are you're needing to say that it is irrelevant that in one case there was no release at all and in the other case there was a release for it's relevant that there was a release but to the extent that it goes to the issue of comparable seriousness in the outcome and the outcome was that a body that shouldn't have gone out of there was taken out of there by persons who are not authorized to do it you have to slice the outcome part pretty thin to to describe it the way you did because in one case the right funeral home gets the barred body so it's kind of no harm no foul at the end of the day in the others the infant baby body gets cremated those are two big differences it again and you are i would put forward to it that if that were consideration by dr gornja that might make a difference i want to discuss it we can see the difference but it might make a difference for testimony wasn't that she did that i see my to my time as i have your remaining time for discipline among mr stand forth mr kessler and the appellant in this case the facts are undisputed in this case there's never been a point during these proceedings where what happened below was ever anything that was in dispute with respect to mr stand forth and i know i've said this fourth in my brief he actually did not even release a body he did misread a body release form and call their own funeral home but he did not even release the body that was you've made that distinction and judge bogs i'm wondering if you came up with that on your own because with all due respect to my opposing counsel dr gorney i could did testify to that during her deposition she was asked she phrased it as they released the right body to the wrong funeral home whereas appellant released the wrong body to their own fear home and that's exactly what happened here i will say with respect to the difference in discipline dr gornja and this is in the record it is in one of her affidavits i believe the affidavit in response in our reply to appellants response to our motion to summary judgment in that affidavit she explains that she thought it was understandable that mr kessler would not doubt that the funeral  was asking for the right person since they knew the name that is why that is what prompted dr corney act through then require that transport drivers when they come to pick up the body have the body release forms with them that is why a didn't verify that the transfer driver was from the funeral home that the body was supposed to be released to but she also didn't have a body release form at all this wasn't a matter of she had to release form and she misread it the body released form that came kessler was the one that actually really said and i think if you read their statements regarding that they accepted responsibility and said it was to them to make sure that they were releasing with it like that the reason the one a reason or well that was i ask them again her issue with them was that she understood it was understandable to her why mr kessler would not think a transport driver would come in from a funeral home and ask for someone by name if they didn't have the body release forms were presented to her and she was permitted then to tell her side of the story she laughed during it the person the name of the whose body was released is similar to the name of the singer i don't want to say in one's name right now and she kept saying the wrong name and then just laugh you know ha ha ha i keep thinking it's the singer she didn't know actually then the name of the body who she should have released and i think all of that together she you know she never apologize she never accepted responsibility for the actions she continued to maintain that the transport driver came in and asked for the child there is an audio tape of it and it has been transcribed and as asking whether this was part of the stated reason by gornja for what her actually was or is the only thing that he stated reason was the release of the body period and that is the only reason that she set forth in the one twenty four were specifically asked for the violation of the body release form and the fact that she released it without having the form at all as what you call the one twenty four order that's the firing document yes thank you your honor am i right that as a result of the kesler incident policies were changed to a certain degree so that when she made her errors they were in addition in violation of this new policy yes your honor would have been the case with kessler is that correct exactly that the caster situation is what prompted dr corney acted then require transport drivers to have the body release forms with them when they came to pick up the bodies it's undisputed that appellant knew this it's undisputed that she knew she had to follow this policy that is why she had the transport driver called the funeral home to fax the body  forms so when you say is required that the transport driver have the form with him he really did write that he shows up they fax it over in the fact you might say gives it to him and gives it back so now it's it's been form and give it to you i mean since if you never look at it it's like they didn't give it to you exactly how that is exactly on point again your honor and thank you for the rebuttal time several matters in terms of looking at the distinction first of all it's not just the issue of the facts that came across the machine there was a fact a release form there the release form was from the name to funeral home but it had the name of the wrong person and i did not address this in my brief summer because it was not addressed the question but if you didn't look at it what difference does it make what it's what what what what what would have been the outcome of she had looked at it and just simply read the wrong name because as happily has pointed out dr was understandable to her that a driver who showed up asking for naming a body to be released by name wouldn't have the form for that release that's exactly what happened to the appellant and yet she didn't get that same understanding from dr gorney at all except on my right that now the policy is that the transport driver supposed to have the fore so she asked for it to be faxed over she never look said isn't that exactly equivalent to the driver not giving you the forms like the transport driver has it in his pocket and you never ask him for it and you never look at it it's a violation of this policy which wasn't the policy earlier well the euro i think again i think that's cutting it tight and i guess the difference you might write factually about the situation though the factual argument that you've put forward is absolutely correct she did not look at the at that but whether she looked at it or not and whether they looked at it and misread it the that's comparable analogy that two employees of equal status take out the company cars and one of them signs out the wrong car and the other one sign on a car at all and both of them get into an accident and one arms fired because they didn't sign out the car and the other one is not fired but given a warning because they didn't start out carbon signed up the wrong one i mean that's kind those that sounds quite comparable yeah right and what i'm what i'm saying is our situation yup that's that's not that's not the outcome of the outcome was is if you're if you're in an accident what does signing out the car have to do with the accident the issue with the accident is who's at fault if the accident is the fault of the person driving the vehicle then you have an issue here as in that scenario you look at what's what's the greater fault who's at fault what was the conduct and that's a jury question you know that's not a question for the court to answer affect the court talked about the qualitative difference well when you have qualitative difference i don't see how you get around waiting evidence to come up with a qualitative difference in a rule fifty six likewise i don't see how you get around a qualitative difference by taking the credibility of the witnesses into account regarding that qualitative difference because we're not basing it on facts if we're would have a quantitative difference but the change in policy may make  difference in that something goes wrong in a company they give out warnings and then they put in a policy and says if anybody does this again you're fired and then the person fired i mean wouldn't that be when that be a real difference  i think you know and not to split hairs around her but i think does it again is think that this was my client's first time and this is the first time this ever happened to her no i mean they could say our new policy their zero tolerance if any employee does that i think in terms of what the company says is then the standard you have to look at the comparable seriousness of the conduct whatever it is that the company has said that we are in we are now having this policy in order to prevent the outcome of of certain things happening or in a way to make sure certain things happen that you look at that seriousness of the conduct whether it's past conduct or not it's outcome based and here the outcome was two bodies got out of that morgue and there was not proper paperwork