granting summary judgment in favor of st vincent on both her terminations and rd higher claims the district court's order compartmentalise to all of the evidence in this case as opposed to viewing it as a whole  when st when looking at the evidence in a light most favorable to dr martin there's clearly a but reasonable juror could find that the scheme perpetrated throughout is that age discrimination occurred during the terminations and in  vincent opined on how best to accomplish that whether it be through a contract amendment or terminations rehire which it ended up being left after the restructure was completed dr morrow at age sixty two had been terminated situated standard to her case the similarly situated analysis is not a one size fits all in this court has gone to great lengths to develop standards that apply to the different types of cases to find its way into this court and that employee the operative question is whether younger employees are treated more favor and that's exactly what happened here dr monaco was terminated and several substantially younger neonatologists took over her duties afte article was not terminated for a legit poor performance so evidence of work history performance reviews supervisors or qualifications are irrelevant or andy is the only supervisor who matters because he's he decided who stays and who goes to do to cover the lower tier haskell as well it's an understanding that the fact pattern here is that that's one decision and then there's a separate decision to hire one who are and then they challenged just for the next few at fact two points so st of all the idea that these decisions are separate from one another is built on the false premise that dr marandi only ever consider terminating all of the common unit toes and that's just simply not the neonatologist you know they work in different locations but these are all neonatologists that work for st vincent hospital and with regard to your nd question the evidence in a light most favorable interviewed numerous candidates was an executive of st vincent knows how the hiring practices work he testified that that wasn't their job was and they weren't hiring anyone they were there to make a recommendation and the decision on who to hire according to  perhaps wouldn't recommend it dr martineau they very well may have cast a wider net so they presented a situation where they couldn't lose they created this hiring pain which as this court has acknowledged can serve as a liability issue to insulate companies from liability unless you can show that the panel was tainted by prejudice so the panel was created as a as a liability shield and if they recommended dr landis and went along st vincent's discriminatory intent to retain the younger dr this then they had the cover that they won if they decided to go a different direction as dr rothenberg stated they likely would have cast a wider net they were not going to extend an offer of employment to dr martin that thought with anybody else on the panel not necessarily your honor but quite frankly in the hussein versus federal express what relation next that was the same situation in fact those these are born employees like on this panel you undue pressure put on them to support candidates a certain way or anything along those lines but that being said this court recognized that the depression is tainted panel and because all of those employees were supporter new to that district manager to want to reapply for the newly created new unit cost so when she states that she wants to reapply in the very moment dr marandi says ok let's create a liability issue let's create a hiring panel and who does he put on it but none other than several members of the small group the so called small group that he had been working closely with for months to carry out this restructure and you know dr marandi denies that that small group even existed or that he consult them clearly  so he stacks it with individuals that he's already been working with to see through this restructure and then he puts on their dr ross and with whom who had admitted age bias and who he had discussed the restructuring with in two thousand and seven so even though according to dr robert they did so he creates this hiring panel knowing that there's a strong chance that they're going to go along with the plan that he's laid out and he's perpetrated throughout this so he picked the hi and it was dr moran ian st vincent that had the interest in retaining the substantially younger doctor lance so they create a situation where they can't lose if in fact the panel goes along with what they say  he says we would have decided to cast a wider net so by not utilizing the correct similarly situated standard that this court has utilized in risk since the multiple witnesses testified that they were working a full shift prior to this and that was a substantial change and how st vincent does is it is this a significant deviation from an established i'll soon practice and which is circumstantial evidence of discrimination in the thank your honor may please the court alan maclaughlin on behalf of defendant apple e st vincent health care and symptoms and carmel hospital this case does not present any unique question of law nor any need to challenge well established president of this court indeed the district court followed and did not depart in any way from this court's precedent in ruling that there exists no record evidence that age was a factor in either decision and as judge sykes correctly points out there were two entirely separate decisions st the decision that to terminate all neo natal or just at the carmel hospital including a physician who was not a member of the protected age class and the nd decision entirely separate with an entirely separate process entirely different set of decision makers that a six member put physician panel not down we separate them out as is appropriate st and foremost the terminations decision we highlight three overarching dispositive factors st of all dr marandi terminated entire department at a separate and different level facility not just an individual and not just dr martin there were five carmel neo natal ages now everyone agrees there's no dispute in this case that they are all similarly situated to each other and ye all were terminated thus there can be no evidence that dr moore noko was treated any less favorably than any other carmel in the unit college just including the thirty five year old who was decision to terminate all carmel unit colleges and the nd aspect of that terminations decision is that the district court correctly determined that the eighty six st neo natal just are not similarly situated in all material respects so as to be proper compared and we have distinguished the collier case and we take great issue with counsel's interpretation of colleague all collier had done was to say the district court in that case it incorrectly said that if the plaintiff cannot show that there is a younger employee who took the position of the terminated employee then they cannot carry their burden and they lose on that that age case the court didn't just didn't do away with a similarly situated argument or change that standard in any way and thus the court district court correctly applied that standard in this case it looked at get to dr marandi the most critical distinction though is that they simply are not performing and judged by the same standards and qualifications the critical distinction is that eighty six dollars street is a level four facility rather than a level three facility you have additional requirements additional experiences additional talents additional requirements to treat more critique critically ill  infant patients at that level for facility so when dr marandi is looking at how to staff and realizing there's an over staffing issue he can take those ne and know that they already are performing those functions and they could perform at a lesser facility the reverse is not true and that was the end of the analysis that was the end of any analysis required but to dig deeper to show that they were not similarly situated those provide eight thousand and sixty three dollars provided care and treatment for a much larger census of critically ill infants at any one time carmel had perhaps six to eight critically ill in and sixty three had sixty to seventy critically ill only two percent of the infants at the carmel facility ever even qualified for level three care ninety eight percent didn't make it that far they were at level one or level two so these are neo natal just while they all are neo natal that's understood they are simply not performing the same functions they are not having the same supervisors they are not addressing the same volume and pace of practice ultimately those d o to tolerate just who are at eighty six dollars treat had the current experience of performing at a level four facility and those at carmel did not and on that basis they could not be considered similarly situated for comparative purposes but finally as this court pointed out in both the ski even the mcdaniel cases even if we assume that it would be appropriate to consider the eighty six dollars st mirren apologists as similarly situated in all material respects and they were not even then dr martin oka failed to provide the district court with any record evidence on which to make any reasonable assessment as to how we compare these were they in fact similarly situated she provided no evidence that they had the same supervisor other than two levels up she presented only the names and ages of eighty six dollars street employees there's no evidence of the same standards or qualifications as we've pointed out already the difference in level three and level four along with the only evidence dr martin ok presented w her own personal assessment which she said and i quote i have way more experience at doing things than a number of younger neo natal exists at eighty six tree and of quote even dr murray no it didn't provide any names didn't provide any different skill sets didn't provide any different experiences on which this court or the district court could assess whether they are similarly situated in fact as we previously noted of those eighty six just three of them were older than dr morrow five or within ten years of our age and four more were above the age of forty so over half the people at the six trees were in the protected age group there is simply dr failed to provide any evidence on which this court or the district court could assess whether they were similarly situated even if it was appropriate to do so and we've cited ski been collier for that distinction so on that basis the simply is no record evidence to suggest that the decision to terminate all of the carmen neo natal ages was based on age and there can be no such evidence we take great issue with council reference that dr landis was given preferential treatment that the evidence in the record is quite clear that that was ms harris who had performed an analysis after the decision to terminate colleges with made she made her own assessment she clarified in the record that dr marandi had not discussed that that it was not his opinion that it was her opinion and that wasn't based on his analysis and had no impact on his analysis and wasn't she she in h r she's an h r correct and just as a matter of course any time there's a reduction for she does some kind of analysis with everybody who has that title and sees how it affects so she did not make any dependent analysis that there was that they were similarly situated she simply used everybody with that title and again that was done after dr marandi had made his independent decision and there is no evidence in the record to suggest in any way that that was not his independent decision so then we shift gears to the decision not to hi rehired dr moreau can counsel conveniently suggest that any time a defendant employer would create an independent panel they're doing it as a subterfuge and that simply can't be the case certainly couldn't recognize that as a possibility if there is any evidence in the record and here there is not dr marandi had no involvement in that panel decision as to who to hire all carm neonatologist were invited to to apply and perhaps most instructive and challenging of counsel's assessment that this was just a cover up not only did they notify dr martin oka of who would be on that panel but then they allow on the spot to suggest that one of the panel members might not be fair to her that was dr john where i am and so they removed him from the panel and indeed they allowed dr martineau kit to suggest who might be more favorable to her her or who she would suggest having on the panel and she suggested doctor in a whitman and they placed her on the panel was it decimal randy's decision as to who should be on that panel i don't think the record reflects that but i believe that's the that would be a fair interpretation but that's why it is so critical to acknowledge your honor that he went to dr martin ok and allowed her both to strike one person and to add another person same facility as all these other person and there's nothing in the record to reflect that he had any influence over anyone else there were six panel members including dr whitman who dr murray put on the panel and they all agreed that landis was the most qualified none of those panel members had had any involvement whatsoever in dr martin ogust germination or the terminations of the the record is also on controversy that they they had interview forms with eight categories they followed all those categories and they identified the decision the reason for their decisions they highlighted recent level four  research on surgical protocols and level four nephews and she had a positive attitude the panel then compared that to dr morrow dr marino his last level for experience was fifteen years ago dr martin oka testified to this panel or expressed in this panel that quote not much had changed in those fifteen years in the panel in their testimony deposition testimony said they respectfully disagreed with that that a lot had changed and whil felt that it wouldn't take her much to get up to speed the panel felt it would take her a great deal of time to get up to speed dr brockton berg's written comment about the plaintiff being at the end of her career career create at least an issue of fact as to whether or not the panel itself was biased st of all your honor it was ian animists decision secondly there is no evidence that that note was discussed or made known to anyone else at any time there's no evidence that dr rottenberg had any influence over the panel it was a unanimous decision so even if you assume that he had some bias which we would contend is a false assumption and there's no record of appeal that that wouldn't have impacted the panel's decision in any way the uncontroverted testimony is that age was never discussed and age was not a factor in that decision and that's from the testimony of both dr levy and dr yeah this case is fundamentally different as your honor points out from the hussein decision where the very decision maker put himself on the panel pick the panel with his two direct subordinates and he controlled the panel there is no evidence absolutely no record evans that dr rottenberg had any influence over anybody else that age was ever just discussed and indeed quite frankly all he said was at the end of the career he doesn't mention age so certainly if this individual had been at the end of the career and it said and was only twenty years old it would made a difference that's not reflected in those comments and most importantly those comments were never conveyed to anyone else on the panel or influence them in any way unless the court has other questions i see my time is expired  thousand and eighty shortly after the restructure hath so in june two thousand and seventeen st vincent says we've got two million units then they bring on another one a brand new brand new substantially younger new unit colleges then  to your characterization of the hospital the ira for because that's just not factual let's factual is that the hospital system fired all five at carmel and invited them to contract or to do it terminations and rehired so yes actually they did terminate her and they think they contemplated doing that as a way to keep her off should we adjust her contract or should we terminate her and then rehire and so while factually yes they did terminate rehire earth they called their shot on they said this is what we're going to do and that's in fact what happened and as to how paris is documented it didn't just include neonatologists include hospitalists to