morning and morning and i misled you k garner practice for the western district a tennessee in this case you know honors this matter came before the district court on the defendant's motion for summary judgment twice that of other press operators it would be the equivalent of when i arrived in this court this morning i was told that i had fifteen minutes to give this court my argument as well i heard the opponent being told the same thing be it fifteen minutes well was expected to perform the same duties the same argument the same standard is his opponent so to speak he would have had to make sure that this court understood everything that the fifteen minute opponent there was mr ortiz's situation day in and day out he was required to do two jobs yet he had to report any thing that went wrong in the course of his employment he had to do a metal check for two of the jobs one for the press operator the press wires that he was running and the other for the add on machine he had to be poor in the era along with the add on machine was an ice breaker machine and there was nothing that differed from the add on machine then from the regular presses that he really everything was the same it was doubled the defendant could not point to one thing that differed that made this job or and that's contemplated by the case law for instance cox's that says that a minor difference or minor inconvenience doesn't count because two things may not be identical but when it's meng the fact to the extent that it becomes a separate and independent job that's a different i would submit to this court begged for a job on another shift that's been raised here i don't think that he could have when he complained about the degree of his duties and the time frame within which he had to operate where there are other shifts at the factory there were there was a first second and third shift and on the other shifted had the a it was operated by mr ortiz his son and so i don't think that it was a meaningful opportunity that he was ever provided he did talk about he complained about having to do what he did never job and i would submit you know if i had been given seven and a half minutes to give this court my argument this morning while my opponent had been given fifteen i would not know your time door the the respondent double the work to do in the same amount of time as the standing alone that itself would not be a title seven violation and might be a reasonable and fair and just whatever but it's not a title seven violation you have to show that they did that because he's hispanic and so you have to show that there's a difference between how  hispanics are treated and non hispanics are treated as and isn't it true in this record that there was another hispanic worker who didn't get this treatment who was on you know had just the usual let's call it single responsibility rather than a double responsibility there was a female hispanic worker angelus ellis who testified that well she did not have this additional the only testimony that missed it came from mr t s with respect to his son did perform who's also hispanic an american he did perform the and o affidavit when he would turn off his machine that the supervisor would observe him turning it off and said nothing and his testimony was essentially well no one could do that it was a two man job and that's what mr ortiz was doing so as admitted that there were no other people who were doing this to me and josh other than hispanic americans and i think from that court could could could afford the inference this was a summary judgment the inference should be in the light most favorable to the nonmoving carty that was not afford it in this instance no one would question that if i were given seven and a half minutes before this honorable court that there would be inherently unfair if it were myself african american female and my opponent was a caucasian male i think because there are no other no other things that the court could look at the conclusion that this court would have to ortiz's employment these mistakes would likely not have happened and that's what makes the the situation so agree just he was given to job ye he had to do the check every thirty minutes for each job and one of the incidents that the defendant complained about was mr ortiz is failure to his regular job was overflowing and someone said you got to get it he went to take care of that and on the way back he was met with the supervisors who said we found you on mistre where it's just a little harder work this was a job a second job and none of it was all of the and issue of discrimination cloaks it it's there well the problem that  has also risen has that hershey claims that your client got written up and had a last chance citation and they actually were permissive on two or defendant in that situation mr ortiz had gone over to chair the quality control that's not the right word he had gone over to check the face and so the district court had the opportunity to look at the testimony but what the district court did and what the plan of submitted to was error is that he looked at the human resource a morning your honour's may it please the court my name is john martin i represent the defendant in the appellate the appellate in this matter the hershey company this is an employment discrimination case and the issue is whether the appellant mr ortiz is able to demonstrate that his terminations was the product of him race discrimination the lower court properly construed the evidence thoroughly through looking through everything in the case and determine the mr t s had failed to address any evidence to prove that his terminations or any employment related decision was based on or related to his race on appeal it appears as though as below with a lower court they looked at three different discrete acts of discrimination in the lower court identify that as the an equitable simon of job duties determination itself as well as the last chance agreement in the appellate brief the plain of concedes that the last chance agreement is not a material adverse employment action that issue gets put to the side in terms of a discreet district discriminatory act the plaintiff acknowledges that there were quality control violations that led to the terminations creating that legitimate nondiscriminatory reason through which there is no pretext it appears as though we're talking solely about the inequitable assignment of the job duties or what the pla two additional lines of ice breakers mints not the breath savers minutes but the just two additional lines of ice breakers that would feed through to the packaging department there's no evidence in the record to show that that decision to place an add on to the d line had anything to do with any type discriminatory animus one way or another in fact if we look at it through the prime of facia case rubric and we're looking at ok let's talk about the and i quote of all simon of job duties such as it is and the deal line gets added has that add on for the icebreakers it fails on the prime aphasia case because we're looking at whether or not there was a material adverse change the employment terms and conditions and the cosa case that the plaintiff cites refers to several factors as to what can constitute a material adverse employment action and the factors listed are a terminations of employment a demotion evidence by a decrease in wage or salary a less distinguished title a material loss of benefits notably the next factor is significantly diminished material responsibilities or other industries that let's say they had told them starting tomorrow you've got the d and the b lines and he says there's no way i can do that  not as clear cut in terms of determining whether it's an adverse action as that recitation might suggest correct in the in the kosik case however the nurse allege that her shift in employment that she was placed on place turning more physically demanding position she was a supervisory nurse that was moved to more of a residential nursing but yeah and it was more physically demanding here we have a situation where the plaintiffs alleging that his position is more physically demanding and i wouldn't say this is what they're the gist of their argument is not he's having to lift heavier weight it's that look i think he can't do it all and what does he get fired for quality control and that's not a coincidence so i mean i would just suggest to you that's not a hugely persuasive point i mean what about the argument that mrs karner makes that there was evidence that has to be looked at favorably in summary judgment that some of the hispanic employees in the plant were getting more to doing last time than some of the white employees to that point i would focus first and foremost on the first shift where we have an hispanic american west garlock cook asian the plaintiff jesse ortiz hispanic american in that situation angie sallust does not have the add on to the a line she's receiving more favorable treatment than jesse ortiz himself who is also a spanish american to the extent that they would like to point to the second shift from a store teases son was also working the deal line with the add on there is no evidence in the record to show that there were any quality control violations committed by him or that any discipline was  to that end you can compare the two to say there is there was a descriptor there was a part there was discipline issued to mr ortiz but not to mr ortiz a son even though they were doing the same work they both have did they both have double up work or something of that nature to the record yes they both worked on the d line and there was an add on that that brought the the ice breakers mints through that on the deal line as opposed to the a or b lines there was an african american individual who was working the d line during the third shift it you know take it to a point but guess what but hispanic on the d line correct there wasn't just a span of employees who were working on the d line the record shows that there was an african american individual working the deal line on the third shift as well  again so so moving away from that from the issue as to whether or not there's a material adversity for the prime aphasia case the issue also becomes whether or not similarly situated vigils were treated more or less favorably and here we have a space in hispanic american individual working on the airline who was treated more favorably in fact if we think about where and how that add on would be placed if they placed it on the a line then the hispanic american female employee could allege that that was sex discrimination because there were two other male employees working on that if it was placed on the b line the caucasian employee could claim that that was race discrimination because caucasian employees made up six cent or so of the workforce at the hershey plant there really was no where to place that's a somebody couldn't have alleged that that you know decision was made on the basis of race or some type of protected characteristic but it was recognized by hershey that it was a dish network yes yes your honor i mean it was phyllis graham berry who was the supervisor during her deposition said yes mr ots was responsible for a little bit more than the other press operators under her purview on the first ship that is correct but she her position is she cut him slack in the interpretation and still he persisted with byelection i think the road the evidence of record clearly shows that there was leniency afforded to mr ortiz over the course of his employment there were no fewer than six quality control violations before his terminations came to bear there was a last chance agreement that he was placed on in january of two thousand and eight at which point any quality control violation or any type of policy violation occurring after that time could have resulted in his immediate decide dismissal or terminations and it did not long was mr ortiz of an employee of person he was employed in october of two thousand and one in memphis but he came from another point he came from another plant but he wasn't a hershey employee until october of two thousand and one on one of the intended no pun intended as was raised previously again mr ortiz had every opportunity to bid into another shift to bid into another line he chose not to her she never denied him the opportunity to do so that is an undisputed fact of record as well more for doing more work i don't believe that's evidence of record i think the legation from the plaintiff in his complaint was he was doing the job of two for the same pay that is his that is his contention there were two additional lines that were run there was also  declaration from jerry love who was the first shift plant manager talking about and i believe that his record evidence i can find it here is fifty dash five and in his declaration he talks about the rates per minute at which these mints flow through the dedicated ice breaker presses the dedicated ice breaker lines are moving at a much much much more rapid clip than than the add on line that was added to the breath savers the line it was a slower line than the other breaths a response to the extent that mr ortiz ask for help there is evidence in the record to show that he was provided that help when he made it known that there was assistance that was requested assistance was provided to him  and another issue to address essentially is that if we're looking at this as we should as a discrete act putting aside to to one second and presupposing that there was a discriminatory animus behind the fact that we were going to increase mr ortiz's workload that decision was made in two thousand and seven and that discrete act at that point in time that's when the caught claim in the cause of action accrues and that three hundred a statute of limitations period begins to run  referring to the supreme court case delaware state college v ricks the quote is that the proper focus is on the time of the discriminatory act not upon which the consequences of the act become most painful mr ortiz was fully where at the time that that add on was added according to his own affidavit as when he was working feverishly and he needed to do many americans to sept two thousand and seven is when it started two thousand and seven correct and so the three hundred day window would start to run from that point in time as opposed to allowing a plaintiff to bootstrap in a little job of simon argument from some time in the past until the ultimate eventual terminations causing the with the employer at that point time to try to defend decisions  and things that were made you know well in the past when those types of statute of limitations issue show the only timely claim here is one relating to the terminate is the one related to the terminations yes your honor and that is why there's the legitimate nondiscriminatory reason the multiple quality control violations on top of the last chance agreement which gave rise to the reasons for you know terminating mr ortiz employment essentially there was contamination these are products that are going out into the public these are things that are being placed on store shelves her she takes this very seriously and needs to make sure that these are relates to the last chance agreement is it bears noting that the the basis and the reason behind that last chance agreement was because mr ortiz had made a verbal threat to another coworker which that coworker reported mr t certainly my have a different version of events but it's undisputed that mr ortiz is the only individual who made a verbal threat to anybody the only factual dispute may be well was the elbow accidental or was the elbow intentional as somebody was trying to make their way behind him and in the packaging department when mr richards was speaking with his wife who was a who was an employee of the packaging department but the ultimate issue becomes the verbal threat of violence that was made by mr ortiz to the other employee violence is subject to immediate terminations but again it was decided that there would only be a brief unpaid suspension that was issued to mr t s when he came back he was issued that last chance agreement the last chance agreement said any further policy violation would be grounds for immedia terminations notwithstanding that fact he received five other policy violations from the time of the last chance agreement until the end of his employment they just last chance agreement are that patient or whatever you call it what that  they are effect for the rest of his work i believe that expires i believe there was no expiration on the last chance agreement but however of course as you move further out it would be somewhat unreasonable for an employer to then rely back on that last chance agreement here what had happened was a last chance agreement was issued in two thousand and eight and quality control violations occurred shortly thereafter in time we're talking two thousand and two thousand and nine one in two thousand and ten and then the two that gave rise to determination occurring towards the end of their in two thousand and ten with the metal contamination in the plastic contamination violation ultimately however again beyond the fact that mr ortiz is a spanish american there's no evidence to show that anything as it relates to his employment was taken because he is a spanish american there was a smear spanish american employee working on the first shift with him on the a line who did not have that add on there is no evidence of the record to show that his son who was working the deal on the second shift was issued or any type of discipline whatsoever for any type of quality control violation or anything in like that in that matter there is also evidence of record to show that the first shift supervisor issued discipline in accordance sensually as it broke down with the demographic breakout break down of the facility itself where there were eighty some percent african american employees six percent caucasian and then fifteen to seventy percent seventeen percent hispanic american employees that's where the discipline fell essential along racial lines clearly not showing that there was any bias one way or the other towards any particular racial group in closing that's the undisputed fact remains that ortiz's failed to point to another press operator outside his protected class who was on a last chance agreement and who had a comparable record of quality control violations but was also not terminated although mr ortiz believes that he was assigned a greater workload which according to him resulted in his eventual terminations there is simply no basis in the record or the law to conclude that hershey's conduct was in any way unlawful or motivated by mr ortiz as race whether in the context of a prime facie case or under pretext mr  know you as to why the double work claim is not time barred because i mean you know the statute requires him to bring to the e e o c within three hundred days a complain about this lawful practice and nothing happens for three years you know the double word is not time barred in this instance because mr t is asserting that the termination equitable distribution of the sand that mr ortiz would not have been terminated in that or the quality check but that i mean that is not an argument that the inequitable assignment itself is a title seven violation yeah i mean you know i just just to clarify sort of what we need to address his or is it fair to say that you do not can look at background information to determine whether or not there is discrimination in a result the court can consider that the court can consider the and quotable distribution of job do the job when he asked for help help was provided to him within that period thirty days or so before his terminations he would get help they would take the help away once mr ortiz was terminated on one aspect of that deal and was terminated a swale no other the african american the relief african american male nor miss gala the cock asian female no one else was required to perform those two jobs except mr ortiz and to a degree his son on the second shift there was an african american male who did not perform and would require work around the icebreakers at around during the third shift or whatever it was he did not perform the ice breaker function of the d line there was no one defendant could not put forward anyone who testified that they did the same job except mr johnson did testify that when he acted in the position of relief worker he did not and he could not perform that aspect of that the lead operator as was required essentially without air granbury but she didn't say these women were also but it was a world of global so to speak restriction and the district court to which she did say that they