honour's the issue here is whether the trial court in determining that there was no genuine issue of fact regarding pretext went beyond what what the court's position is supposed to be and intruded on the province of the jury the question is where the comparatives that ms jackson proposed could a reasonable juror find that they were sufficiently identical in their conduct such that disparate treatment of those two people could give rise to an inference of discrimination we're talking here about a plaintive ms jackson who had worked for the hospital for thirteen years never subject to any discipline nothing more than exemplary performance evaluations she was put into a situation where about the time that up that some patients were to be walked out another patient in this this is a psychiatric hospital nobody in there is in is really in their right mind we know what happened the nurse had been doing the checking out the nurse said take these people out she didn't check the bag she was wrong there's no question about that but the problem that her situation it was that they had to huddle just that day and said don't let them out my shoes see the id and she didn't say that i did and so that in the face of that instructions that day said you might be fired or something to that effect that you just can't do your honor the problem with that is that there's a factual issue about whether that was ever communicated to ms jackson start please go ahead she sent jumped in there and again that she was there and wasn't there warning put on the paper where she said your honor i don't know of how many conferences that you've gone to i'm sure i'm sure there have been numerous ones i do meetings where she testified that she immediately was called away from that hoddle to deal with a patient so she wasn't there when it was discussed there's no evidence that she saw the the page the page that was attached besides which she also testified that everybody knew that before you walked somebody out you were supposed to check the id i mean that's that was what mr duncan that done wrong he hadn't checked the d that happened months of him on the issue of the form i mean i think the forms important for two reasons i mean i guess i want to see if you agree which number one  miss jackson's culpability to the extent she saw in that and you know a short time later doesn't comply but you know in a case where the issue is whether the employer's reason was pretextual doesn't the fact that the employer that very morning chooses to emphasize this pursue concern isn't that powerful evidence that this is not a pretext at all i mean they that very morning the employer emphasized how important this is regardless it could be around it but isn't it important that but isn't isn't isn't that really the larger import i guess i mean regardless of whether she saw it i mean the employer that very morning emphasizes so doesn't that make it pretty hard to say it's pretextual well your honor first of all i would emphasize again that this is a factual issue the question is not whether you or i think that the the morning is sufficient it's a question about whether reasonable juror could when you put that in juxtaposition with the fact that ronald duncan was on a final warning on his second final warning at the time that he walked the wrong patient out without checking the id and without even providing a crutch for the disabled person he was walking out and walked off the job in the middle of his shift that same day and that male person was not terminated a reasonable person could look at those two situations and say you know the fact that they reemphasize that you have to check the id doesn't outweigh the fact that this was an exemplary employee who was not on a final warning second final warning  and can find that there is reason to question the credibility of the of the of the articulated motivation of the douglas burns shifting there were other people who did there were comparable to the same worst in terms of the seriousness of the misconduct that were treated more favorably as i understand it it's exactly it's exactly our point your honor know what they mean and health and safety walking the wrong patient out no question violated both of those things but walking the wrong patient out when it's done by mr duncan also violated those same things and he was not as an exemplary employee and was on a final warning not searching a patient who comes into the hospital with a waist pouch with three not i guess in it into a psychiatric hospital certainly has to involve health and safety is that duncan as well that was mr little that was mr little who by the way received a verbal warning for that even though he was on a last chance agreement is still good he didn't attend however where they said don't do this period right don't let anybody in here with knives  whatever it was that there was not a specific cuttle for that your honor but i don't think the hospital's going to argue that anybody knew that searching that when searching is part of your job for intake that looking to see if they have knives on them is part of that is a violation he was disciplined for that there's no question about about that he was disciplined for that in january of two thousand and eleven actually for that one he was suspended and put on final warning but he had a previous written warning in april of two thirty thousand and thirteen he walked a patient out improperly the rules were that you can only take the direction of the nurse he out on the on the word of the social worker it turned out it was in the wrong patient he walked up to the right one but he did the wrong thing he didn't follow the procedures  finally in june of two thousand and thirteen mr little miscoded a blood sample certainly a safety event for those last two things he got verbal counselling only again after he'd been on a written warning that so let's get a little far afield what what is the difference between the showing that you need to make for your prime a fashion case regarding similarly situated you know other employees in the pretext showing you follow me i mean basically your argument as to pretext is identical to your argument as to private pressure case it's very difficult you're on to be takes maces aren't the cases are not clear about  identity and similarly guess what are your thoughts you know what should it be what additional showing should be necessary to show pretax i think well i think you probably have to bring them in a little bit more closer little more close you know they have to be watching to see more identical morsi and that's more similar yes but i but i submit that in this case especially with mr duncan you have sufficient similarity here's the here's the question can a reasonable person based on the different treatment of these two individuals given their conduct can a reasonable person have a suspicion that this reason is not morning your honor so kevin campbell in behalf of the the apparently the m p h s detroit receiving hospital in your honors if i may just briefly touch on one issue that we arose during an argument education policy and i'd rather go question is a good player in the middle of an infraction but what about the contention that you know if you compare her with mr duncan who was on final warning  the patient that proposed compare or duncan released we don't know if he had a he or she had it was a serious violation of the policy it was some of this case your q category of major  our medical people who who could evaluate the at the the institution doesn't ask them to determine the seriousness before checking them bam they're supposed to do that in every single case gathered the property she was distracted yes she gathered the property which had the educational labels she knew who did who's to be discharged the records clear in simply by adherence to the policy she could have averted the outcome i mean a reasonable fact finder could find couldn't say that if the hospital was going to fire jackson they probably should have fired duncan to l a to finish the thought then if i a no reasonable fact finder could conclude that i'd i believe so and this is because of colvin and i and i know i'm not talking about the case well i'm just seriousness to actual consequences this is a suicidal patient we know nothing about if we do nothing about i mean the conduct is identical ok i mean you're not you're not arguing here that she knew this person was suicidal when she chose to let him i mean the conduct is identical in duncan's case i guess i mean this is a hard case it's a hard case because duncan has a train wreck of a record and he engages in the same conduct and he doesn't get fired and on the other hand mr jackson's were in that very morning and but i guess you don't you don't think somebody could i mean one could say well you know what maybe they didn't discriminate against her but they should have been tougher earlier with duncan but you're saying nobody could think duncan should have gotten fired well in comparability the facts don't have to be exactly the same if the situations are sufficiently similar that they can be looked at together for purposes of comparability although in this case or pretext or both designer least from the record that perhaps the hospital didn't like to have females in this position of medical health technician because they had to deal with  predominantly female but wouldn't there be some circumstantial indication of the institutions preference or lease a fact finder my bid lease take that into consideration the so the nurses the again in all those if you look at all those involved in patient care other than their h d s if you look at nurses if you look at social workers fifty five percent of those folks were were female  so if there was a concern that women but i mean it's just quite points out that the question for a jury if it went to one is did they discriminate against her in this position and if say the other twelve  people in the position are all men and you know i mean doesn't that provide some circumstantial evidence that they didn't want a woman in that position i would say if there was evidence in the record that mental health ignitions with only ones with direct involvement with patients there might be some reason what inference might be drawn from that is there another position that would require the same show that would require the employee to be able to control physically a patient who is having some problem i submit that this is that that the record evidence doesn't demonstrate who is case you know and people urinating in that sort of thing we know the technicians have to deal with it if you're saying we don't know the record doesn't show whether any other position at the hospital is one where those folks would have to deal with  dealt with the your argument was other people have interaction with pay yes but now you're saying the record doesn't show you i think maybe i missed misspoke so i'll just try to be clear that ten seconds because i mean  i will be brief citation of the roof and coleman cases i think is completely apt when you're talking about equating or or comparing the potential consequences from the act in the ruth case the pla i'm saying the comparison is in fact that because it shows in ruth the potential consequences were very different one was potentially killing the compare it or gave the wrong antibiotic which had no good negligible consequences i think was the word that the court used right the potential consequence of the two acts were vastly different well i mean but i mean in fairness one could say the potential consequence of turning was a currently suicidal patient is much larger than turning a patient who is currently suicidal i think you're on i think each side needs to sort of recognize right there in a something's and that would seem to be one that you have to recognize i mean unless you're you want to i mean you want to stand on that line there's no difference between turning loose a patient who's there because they're suicidal and a patient who is well your honor we don't have access to the to the records and i think it would be a violation for somebody to tell us what the condition that mr duncan's patient had he may have been homicidal the fact is he was in a psychiatric facility for care and very often that involves the potential of causing harm to oneself or others i think it's also important to note that in the disciplinary proceeding and in the record of the disciplinary proceeding there is no mention of the fact that the patient was suicidal it doesn't appear to have entered into the reasoning at the time of terminations the last but the hospital faced at least potential liability that was equal  in both cases and certainly the potential liability from not searching as little didn't a patient who had three knives i would submit that the potential consequences are a lot more similar in this case than they were in ruth or in colvin as judge sailor may recall he was on that panel where the plaintive dispensed ten times the proper dose of a controlled substance and the compared or was sometimes late in doing prescriptions again i mean the potential consequences were vastly different and so ruth and cole than i think stand as good examples of what this case isn't what is your best case i mean this boils down to basically you've got a strong compared or therefore the jury could find discrimination but what's your best case that you would point to for that profile strong compared or really not much else i mean there's really no with other than the twelve out of thirteen or are men i'll grant you that there's not much of a feel you know in this some cases you can i mean just feel it but  what's your best case for the similar case same profile strong compared or not much else like billy i mean they went to the jury i don't i don't have one i haven't i haven't found one and as i in my original argument as i've pointed out in response to your question courts have not really given any sort of usable distinction between similarly situated and substantially identical and this court said it should go to the church it should go to trial because of the strong compared or even though there isn't much else well manser and i think her and i mansur and i think of the language from there is important when they're talking about the rebuttals to the legitimate and not discriminatory reason they said the two types of rebuttals and specifically the third which is ours that is the their direct attacks on the credibility of the employees preferred motivation for firing a plaintive and if shown provide an evidentiary basis for what the supreme court has termed a suspicion of  suspicion of mendacity itself raises the inference of discrimination because you're lying about what the reason was that reason wasn't sufficient i mean the mendacity boy that were just does not seem to fit well as applied to an employer who that very morning said do not do this one thing you know to say they are then mendacious for terminating somebody who did that thing that well your honor if they're not disciplining her they're certainly not they would if they had suspended her we wouldn't be here today ok argue thank you thank you