so employers and supervisors who choose to discriminate on the basis of race have become too sophisticated to do so by using racial slurs or to leave glaring tracks if they're going to terminate or discharge an employee for racial basis or discriminatory motives are hidden with in a neutral remarks about business necessity the employees inadequate work performance and other means of expressing anim this was written by this court over twenty years ago i'm sorry twenty three years ago in barnes versus yellow freight systems age and as it was true then so those businesses have become even more sophisticated in hiding their racial terminations and their animists in language and in actions that are not so easy to reach mr ter minations is the legacy of this level of sophistication of racial animus and action that in this case the mcdonnell douglas framework actually this at mister burden to produce substantial evidence a pretext because at the level below the employer conceded mystery ob had met his burden because his pr aphasia burton and at this level with the appeal mister has agreed that the employer really did produce sufficient evidence to meet the production burden so what we get to do is the analysis of whether the evidence produced by mister does in fact prove sufficiently pretext to move forward and in fact i want to go through that evidence because as will be seen that evidence does indeed show that the employer was acting with animists and that the employer discharged him for  four on a pretextual basis or gave the court a pretext to a basis below when in fact it was racially based on this evidence it's i don't know whether it's easier or more difficult mr  and the employer used almost almost all the same evidence below almost all the same evidence was submitted by both in the summary judgment and so it's clearly just a matter of interpretation and mr  show the court that because he is entitled for the evidence be viewed in the light that is most favorable to him that is his interpretation of the evidence that this court should look at in making its determination will start with the the metrics there are actually metrics that are in the summary judgment evidence the employer mitsubishi caterpillar argues that m evaluations were lower than his two colleagues who were also plants supervisors in that workplace so all three men are plant supervisors and they argue that his evaluations were in fact un satisfactory or lower dan in terms of looking at the subjective writings the subjective written part of those evaluations by mr the supervisor who terminated him that would on its face appear to be true however those evaluations have a lot of metrics and and mr  that when you look at the metrics the the fact that the three plants supervisors had nearly identical often quite identical but certainly comparable value but that mystery ob was given subjectively really not low evaluations just meeting expectations as opposed to exceeding them so not so much lower but those subjective evaluation actually go toward mr burton to show that there was a racial animus at work along with other evidence of racial animus in comparing those evaluations tabs six were at eighty one percent eighty six percent and eighty six percent respectively with mr being a bit lower but the important thing to note is that the summary judgment evidence shows that when that evaluation had been done in the midyear of twenty thirteen mr eight yob had only been a supervisor for about three months he was elevated in may of two thousand and thirteen and so his mid year which was done just slightly later than the mid year was based on his taking over a position that somebody else had and yet he was evaluated at eighty one percent of ninety five in one criteria he was at two point three out of three point four in safety while the others were just point one above him two point four he was only one and a half percentage points below the two of them on quality audit line one he was above both of them on quality audit line two he had the same number of hours per unit in all these metrics are actually in the evidence and he had an eighty seven percent over eighty percent on his impact criteria although there's no evidence no evidence presented were presented of what the these values completely mean  he was at least in terms of the numbers relatively close to these other people but what precipitated his discharge was the problem that occurred with the whatever it was that came off the line i forgot what these people made but whatever it was it was a major problem with that and he got fired because of it i mean so i guess the question is let's say that your argument is right to the extent that it focuses on the fact that there wasn't a big discrepancy between him and these other two managers in terms of how they were  evaluated but the problem that occurred on the line that he was supervising seemed to me to be the straw that broke the camel's back and so that could you address that absolutely your hon so i'm going to jump to tab nine because in tab nine this court will see that the issues that were at play in the problems with the truck trucks at that they're sort of like forklift trucks that were being manufactured on the lines and line one in particular which is the one that mr supervised that that company was attempting to why it was that there were problems in an exhibit nine the court will see that the engineering department was looking into those problems and in an e mail april tenth twenty fourteen which is just after mr had received a merit raise the engineering management began discussing what the problems were and they stated that they were having to make a new assembly he now although he was never part of the summary judgment as to what it means it is most likely because it's a manufacturing company and engineering yobs job description which is in the evidence clip clear and it's the same job description for all three of those points supervisors nothing in that job description discusses that ob is to do any engineering or troubleshooting of engineering that job description require somebody to have an associate's degree a two year degree and i believe it was two to four years of experience which is not what one would have if they were expected to reinjure near the line i mean one of the gaps perhaps in the evidence but i want to ask each of you about of it's not as much of a gap is not clear exactly what it that misty was supposed to have done that he didn't do or did that he wasn't supposed to but does seem to me that regardless of his skill set as supervisor of that line he could have been aware of this problem which  before and had been somewhat address say on top of a better more regular checks on the forklift that came off or otherwise some sort of testing to make sure that they were that the problem was not recurring and some way watching this fix each time it was done in a forklift least on a on a sample basis now those are just some isis and it's not in the record but it doesn't mean his absence of an engineering degree or whatever you think might be most appropriate is not what a supervisor needs to keep track of whether some fix is continuing to be made so what is in the record along the lines of i'm talking so your honor you're correct that the record is not as clear is that i want to be on what mr easy option have been doing differently so we have to look at the job of valuation and i would suggest that those those  objective metrics as opposed to the subjective writing which again is not so bad he's meeting expectations in all cases where it is says that the quality focus scores have been very low needs to do more work on c surely not a glowing report that's right your honor in the subject of writing it does say that his quote that his customer service is low and then when you turn to those metrics which are on the the second page are probably i think it was the back of the evaluation at that time it that the metrics do not show that he was lower in those customer service criteria and in fact and i'll come back to your question i just want to say if you look at the end of year in fact his soft skill was ranked at at at thirty five percent and it was written unacceptable by mr chesty while mr we got a much lower score of sixteen percent and there was no comment on his at all and to go back to your question judge the we have to look first at that job evaluation where the comparable numbers that are metrics tell the story second of all you asked shouldn't mr yaga been responsible for or as the supervisor knowing what was coming off the line and it's his job if you look at the description is to communicate with the employees to to make sure they are doing their jobs to keep the overtime down to make sure they're doing what they need to do in terms of whether the machinery was meeting the standards the company had in the engineering department audit and those numbers are set forth in exhibit nine that show in detail  audit findings for that period of time when mister twenty thirteen when he was supervising and they never say so so interviewing itself is responsible for the audits and for making sure things are right they never blame mr they never put fault in history yob but what they do is they talk about the need for new assembly and in fact in the first page of tab nine which is  the record at three hundred and four a couple pages there after they did they set out the evaluations that they got from two hundred i'm sorry three hundred ninety seven of the employees who talked about what the problems with the manufacturing problem were or process work both good in the bad i suppose they're not clear about that but they do give line items on some of the questions asked and termination wrote that the physical plant the survey showed fixtures and jigs many comments old worn out ineffective simply absent the raw materials poor quality steel leads to poor quality parts and by the way there's no there's no good listed here it's all the the bad parts of the manufacturing process all the problems that were on these lines that had to do with the engineering in the overall and again mr mentioned it was not his fault that's what the summary judgment evidence showed poor it says part qualities many comments it says needs better inspection tools many comments newer better tools needed design for manufacturability issues don't seem to be fixed suggestions not incorporated the plant had a lot of problems but not one of those problems is attributed specifically to mystery op and viewing that in the light most favorable to history what that means is that the excuse of his poor performance is exactly what this court previously wrote about that in retrospect if observation now what was that exactly it started with the second occurrence of the major malfunction on the hydraulic lift and i think it's a sort of hydro clever thing it's important to discuss and maybe an answer  its question of how that came about and what that evidence is in late two thousand and thirteen a bunch of customers complained so many so in fact that they had to shut down the production on the avs line and rework every truck in the line that testimony page four fifty six of the record was from vice president of design kevin precor and i'm although i've seen this this evidence and sony go through it but what i'm looking for is how is any of this his fault continue but you can sort of highlight why what is it that he should have done or did not do that would fix whatever it is you're talking about i don't know the answer in two ways one wasn't appellant's argument boils down to he should have been an engineer to have caught these problems or to fix these problems and i think neither of those things are true as to who should have discovered the problem the problems here being the supervisor on that line was responsible for that and we audit fit in that your friend on the other side was talking about it sounds like it is there some call the check by some other department as these forklifts come off no your honor we would suggest that it was the ups responsibility if you look at page thirty five of the record excerpt which is also two twenty five of the record on appeal and then the following page after that these are the job description of a supervisor of a plant supervisor duties that he had on of the position summary section his response was to achieve a target in safety and quality so achieve the target of quality he was supposed to make sure customer satisfaction and quality were major priority and he was supposed to ensure quality products are produced according to the specifications these must achieve daily production targets those are the duties set out in his in his job description and then if you look on the next page thirty six of the record excerpts or two twenty six of the record on the piano his principal duties include supervise and evaluate production staff to ensure quality products are being produced according to specifications and supposed to make recommendations for process and equipment changes to make improvements and i think in the context of all those duties and support to understand that both in two thousand and thirteen and then the problem occurred again in twenty fourteen the discovery was by the customers complaining about the trucks overheating and having to be taken out of service there's no record evidence suggesting that the customers were engineers suggesting that only an engineer could discover that this problem was occurring with these trucks and there's no evidence that you have ever went to his supervisor said we've got these problems these aren't being we can't manufacture them in an appropriate in a working fashion but he obscene to suggest they are going to boils down to as a supervisor or an assembly line he had no obligation to make sure this line was building working vehicles and that just defies common sense it seems we both sides are kind of coming at this the same way which is sort of given us to general a description of what was going on there is there anything in the record that says station four of this assembly line when the levers were installed any option would have been there looking at the installation or should have been at the end of the assembly line and tried to leave or i mean there's no specificity could this that i have seen is it in the record i just haven't seen i don't who tell me that he's in charge of quality ok great but but if something comes off bad i can i mean what we worry about is pretext and you don't get rid of a good employee who's basically doing his job and they haven't figured out what the quality problem is but you mike you would have a problem employee if you have some problem that's not really his fault and is coming off his mind so some specificity would help your case well i think those duties that i just to strive to encompass his obligation i think next it's important to look at what exactly were the problems that were being discussed and discovered and if you look at record x or page fifty two and fifty one in fifty four these pages relate to the investigation that the company t after customer claims complaints in twenty fourteen it led them to once again reassess the trucks and when they did this assessment they found that eleven of the second seventeen trucks had a hydraulic lever that was quote not  adjusted they had others that were missing a part and they had others that were not set up correctly and so while it doesn't say which of the more than fifty employees that worked on that line might have caused that problem the idea that they were not adjusted or that parts were missing are clearly the sorts of things that at the end of the process a supervisor who's doing his job and evaluating the the forklift truck that his line has made would catch because they're caught once they do actually take the time to assess them down the road and so this this this evidence ties into what his obligations were as a supervisor of this assembly line i think it's important to remember that this was not an employee who was performing at a standard generally there are lots of metrics on which he was measured but the most important one was quality testified that he knew that quality was was paramount he that they discussed quality at every stage and his midyear quality score was seventy six point five percent out of a goal of ninety by the year end of twenty thirteen it gone up a little slightly to seventy eight percent but that was still more than ten points below the company goal and so over that course of many many months leading to the year end of twenty thirteen and then continuing on in twenty fourteen the problems were on his line they weren't on the line supervised by mr we they were on the line finish cleanup maybe putting the decals and the logos and things on the trot they were not assembling the truck themselves it's important to to understand also pages four fifty six of the record in five of seven that when the chorus testifying he said actually you'd expect better results on e obs line he said the the i have had more employees but as a result each person only had to remember about seven minutes worth of work on mr hill ridgeline it was building a different truck with fewer employees each employee had a member remember about thirty minutes worth of work and so what you would expect would be the employees with with with  job responsibilities of make fewer mistakes as a jew to expect better quality off of yobs line but over the course of many many months reflected in those scores below eighty percent that wasn't happening and so to answer just off this question it wasn't an employee who line was performing up to snuff the just had a rough patch in twenty thirteen and twenty fourteen vice president goslar testified in the twenty fourth of sorry he e mailed in twenty fourteen they were worried they were going to lose customers if these trucks kept leaving the factory in this condition and so as a result of that inspection which led to the discovery that there were problems of failure to adjust for failure to put parts on the trucks th were coming off the yobs line the decision was made to terminate mystery  one employee i believe was thirteen or fourteen years and as a supervisor he had two stents as least he was employed for thirteen or fourteen years and he was promoted to supervisor is now you know  that's not the usual case that we get rid of raising the legal problem that yours is reason i mean i mean obviously he was successful to some extent or he would have been there thirteen or fourteen years and he wouldn't have gotten promoted to supervisor so you know my question about this case for what it's worth maybe not much is is that the summary judgment i mean that's the question the evidence is and you have and this record is testimony in it that makes very clear that if the supervisor had been doing his job his mind wouldn't have had these problems i think at a minimum the record is very clear that the supervisor doing his job would have caught the problems they would have never got to the customers they have never gotten off the line they wouldn't have happened in two thousand and thirteen been fixed for a time but then whether it was through lackadaisical work or what have you the problem occurred again and i think the volume of problems when they when they did the twenty fourteen review after the customers complained eleven of seventeen army trucks had a drop lever problem and there were fifty there were sixteen trucks in the shipping center of those six ready to go out of those fifteen of them had problems and that was from that was work from february and march leading up to april and so that's that's a large period of production that wasn't satisfactory and so as a result of that evidence and you have has no you know we can talk in a moment about the racial animus and other pretext of it he points to but none of that can overcome the significan systemic problems with the production on the line well miss radio does have at least some suggestions from the information about how inadequate the assembly line was and how the tooling just what might have been going wrong at that line and so my concern is without more evidence of what iago didn't do other than he didn't catch it i have a sense of you haven't given a sen good supervisor would have noticed that fifteen or sixteen products that were built on his line were in a state that had previously caused the company shut down production entirely because the trucks they produce rover heating and they got so many customer complaints they're worried about losing customers to have all of those trucks levy i was lied to him never touched them not in twenty thirteen and out of twenty fourteen for him to not provide any sort of quality chat is absolutely inconsistent with  the job descriptions including some that were essential functions of page thirty six of the record excerpts of his job your vote is basically the buck has to stop somewhere he is the supervisor after all and the record reflects that that  was his responsibility yesterday and doubtless that also reflects that when he was replaced and they put in somebody else that these problems were eliminated i'm sure it reflects that too right what the record reflects and it's discussed in the briefing is that a new supervisor and new line was put to build the trucks and about a week later they did experience the problems again and so history suggests that that evidence a pretext and as we mentioned three categories of if you don't you finish that thought maybe you continue with it is there evidence beyond that first week of the next supervisor or the time he was as it shows six months later otherwise you know things blown and go and there's no more problem not in the record so we  don't know what the problems could be recurring but it's just not in the record i'm not asking to testify in front of c h it's not in the record where the problem was fixed or not fixed you know that was not that did not come out during the discovery right so it is like i say he has three of categories one he he points to the failure to use a progressive disciplinary policy there are five things to know there are the policy on it's face was not a mandatory policy that's page three sixty one in three sixty nine through three seventy there's no evidence that his supervisor that's a paid fifty six and the h r director testifies it for ninety eight for ninety nine that for other terminations who did not follow the written progress of disciplinary policy the most common cause of term racialist poor work performance taken all that in the contacts there is no evidence that this policy was followed for non minority employees but not follow from mr yobs of other turner for seventy six f thirty three forty six and taylor this court case three twenty two federal appendix three sixty seven pretextual evidence with respect to the immediate term a nation of mystery second he talks about similarly situated employees but he must show they're nearly identical in circumstance and as we discussed earlier the other supervisor was dealt with and i don't know when they start producing the truck he transferred to a line that i believe had already been producing the truck and when he became a supervisor in may twenty thirteen i'm not sure how long the line had been producing the truck before that when i said  yobs term nation they terminated the truck strike they transferred the production the truck to a different line so that that truck was new to a new set of it was new to that set of workers is what i meant so second similarly situated and employees  fails to meet that stare in many ways both the different work the different history the different problems and there was no evidence that this problem could have occurred on the line but and so with all of that he cannot make the nearly identical circumstance assessment that he would need to show that he was simply a situation someone who did not get terminated and then finally or the racial animus evidence which just a court correctly recognize troubling comments and because the district court has to review them in the light most favorable to you even though many of those incidents were disputed the just report credited them all and he said even with that and even i take them all collectively these are not says sufficient because they're vague they're remote in time they weren't related to the actual incidents themselves they are not evidence that would overcome the work testified that he deserved generally meets expectations which is the third lowest of the four ratings he testified in at page two thirty seven of the record on appeal that that was enough was a fair evaluation it made your and so while the district court found the incidents a mystery ob discussed troubling he said in the light of all of the evidence in the weight of the evidence that suggested that work performance was suffering and had been  insufficient that on balance there was no evidence created by this great comments by a supervisor festina of pretext and so if there are no more questions on that all i will say his second claim hostile work environment as we say over if he writes only a paragraph he's basically abandon the claim because he doesn't set out to meijer even to discuss what the standards for that claim would be his own testimony refutes the element on terms conditions or privileges of climate because he says none of those were affected by each of the incidents which he complains of and he never notified the h r department of any of those incidents so he didn't give his employer the opportunity to correct a problem of which it wasn't made aware i believe the test there is quite clear that if the folks have the same job or responsibilities and that is in tab of only five that they did they all had that same job description that they have the same supervisor mr chest evidence shows was their supervisor and essentially comparable violation histories and while there are no evidence that any of them had any actual violations i would turn the court again to the end of the year evaluation i talked about the mid year the end evaluation the record one ninety eight to eighteen and to twenty three compare the three supervisors and you will find mr scores were above the other two the other two supervisors at the end of the year eighty six percent versus the other two hundred eighty one two point four in safety the other two were two point three i could go on but in light of my time i want to turn to the next thing i want to refute the statement that they did find that mister should have been the one to catch the issue mr chasse dean said it was a performance issue and said that it was because mr didn't catch the legal issue mr c cited in the record at forty nine said that the lever issue had absolutely nothing to do with safety it was never considered a safety issue not even after further consideration and nobody was disciplined in response testimony there was no can there is no contemporary evidence anywhere in the in the evidence that was presented on summary judgment or in the record that mr was responsible to do to determine an engineering problem which there is no doubt that they had an engineering problem during that brief period of time when he's a supervisor less than a year and after he had left and there is no evidence as council stated that it did th problem in dated any particular time we just don't know there was no evidence of it one way or the other when the problems of the evidence of the problems were not eliminated would been helpful but even more helpful is the fact that mr did get a merit raise see he got a merit raise just a month before the terminations the wasn't the problem of the line whatever the calling would be had not yet been discovered tha they were working on it but at the time there has been no evidence one way or the other that it was ever mr yobs fault and now i'm saying that the fact the problems we currying had not yet been discovered when he got that near a grade hadn't well i think named mr wayne was gone from the workplace and it's highly offensive to identify or just say you were all fungible that was said twenty to thirty times during that period of time and see my time is up and i asked the court to reverse and