because the court just heard thomas was discriminated against and then retaliated against for opposing that discrimination despite substantial evidence supporting the facts the trial court granted summary judgment to defendants and doing so misapplied the law how does a reference to alphas where he just hired a female for one of the positions lead us to believe that it was the statement discriminating against men who didn't show male characteristics well i think again because some of the contacts and that the testimony that there  i guess that is that is where that comes from and i just i think that is a reasonable potential for understanding of that that statement and i know this defendant and the district  to more than one interpretation those circumstances the the actual case law hasn't really directly decided that question and maybe bonded and i missed that and i apologize if that's ok let's let's assume for a minute that we're not dealing with  so turn to the mcdonnell douglas train mark yes ok the district court assumed to prime a facie case and sad there was and you admitted as best i can tell a proffer a nondiscriminatory reason and so the burden is on you to show pretext yes you focus on what evidence you have what evidence you came forward they want to go off of the years and then something discriminatory happens and from that if you get a p c in front of and there was something going on here or there was you know there's a question of why you didn't want that in writing  other statements or information and so that's really what we focused on and what we believe we produced evidence  go along with what the supervisor says the supervisor says that this is what they thought that's what they thought but that again i think it's a let me go isn't that really the stand i mean more not supposed to nd guess what management don't really believe if there's no basis for them to believe i'm you know i think that's not the only way that you would show that other than you know if you could catch them making inconsistent statements and again i to support any of these allegations throughout his deposition the plaintiff conceded that his claims were based on no evidence at all or nothing more than speculation and conjecture and in response to the summary judgment plaintiff attempted to disguise the admissions but just very briefly was something that was mentioned in the briefings i want to make sure that the court is understands our view on this is that the supreme court's decision involves the as from june of two thousand and twenty has absolutely no bearing on this case at all established that it doesn't disappear that that both the decision maker for the promotion knew did not know he was gay and that the decision maker for the terminations about it was gay and in this situation the plaintiff hadn't even alleged any evidence or hadn't even alleged that he was regardless of that even a boss doc applies the outcome here would be the exact same so with respect to the a u position that the plaintiffs contending he was denied because of his failure to conform to sex stereotypes there are two open positions that were in phoenix the plaintiff was one of ten applicants a gentleman by the name of john grabbe look it was the one that was making the decisions and one point of supervisor jared shelton ended up finding out that the plaintiff applied for this position m improper prescribing but after interviewing for the position as good as the judge pointed out mr rabbit's hired a female britney harris and mr chavez concluding that they were more qualified applicants rd two thousand and eight mr rather than met with the point of personally to end up telling him why he did not get this position now fortunately in this case the plaintiff surreptitiously recorded that conversation so we know exactly what was said and the context of the statement that was made is that mr ran that was talking to the plight of about how he did not show cases leadership skills as good as the other candidates and his comment exactly was he might be a good candidate in the future because quote in the future i might not need a leader i might have a bunch of alphas over there now that comment has absolutely nothing to do was sex stereotypes but the plaintiff has latched on to that crime that is the catalyst for these claims now with respect to the say you possession point of testimony was very clear the plaintiff testified the question that was asked to him was so other than mr rabbit making a comment about  because of your sexual orientation or failure to conform to male sex stereotypes answer no none of those three pieces of evidence carry the day as the court noted the comment about alphas is clearly something that at best light is subject to two meanings but the reality is that in the context in which it was made it was clearly a reference to leadership abilities the table cases clear if the time to if the context of the statement can be viewed in two different ways it is not a direct evidence of discrimination so as i said it best when you give that as a comment that can be interpreted in two different ways let me let me ask you about the retaliation claim fermina one of the arguments is that contrary to your disciplinary policy that the diff that the defendant went straight to a final warning without engaging in any progressive discipline and that that avenue in some retaliation what's your position on that that is not evident our position is that it's not evidence of retaliation in any way why so well and the reason for it is that so in terms of the in terms of the final warning which is where that issue comes up st of all we don't even believe that the point of the point of has  in that situation but in terms of the burden shifting analysis the point of this pointed out to try to show pretext of it and a number of different ways one of the pretext that he argues as you went straight to a final warning instead of some lesser degree of discipline st of all there is absolutely nothing in farmers policies in the defendant's policies that will acquire a move to any type of progressive discipline the progressive discipline policy says here's what we  do but depending upon the circumstances we might end up skipping any level of the use of these provisions there's also absolutely nothing in the law that requires that a party defendant or of an employer end up referring to going through any kind of progressive discipline so the fact that the company in this situation ended up going to rectally to a final warning is not evidence of any kind of inconsistency or pretext most of what it was in this case judge is that uncontroverted in this case that during that three month period that mr shelton met with the point on at least eight separate occasions at least eight separate occasions and ended up demonstrating t mr thomas here's how you're not doing your job correctly here's how you're letting your anger show when you talk to people on the phone here is how you were not showing empathy when you were talking to people on the phone and so we had all of those counseling sessions the mr holland the comments you refer d to are not the only comments there at least for comments between june and october th that are favorable to the plate and good job you're here a rock the the references what you can you say what you just responded is the only evidence there's a conflict in that evidence no but there's no conflict judge i don't believe there is a conflict so st of all d the dates that you're referring to go towards the determination we're back on to the final warning though there were positive comments under sort of there were outright determination which is retaliation quite well there were positive comments about him as well but judge the fact that a supervisor might make a positive comment about the nuts and bolts of how somebody is doing their job doesn't mean that it's inconsistent for the supervisor to criticize them when they don't do well otherwise every time a supervisor says anything reflect least on the proposition that that under these circumstances you would expect them to use progressive terminations and they didn't do that and i would not agree with that in this situation just because you have to look at the facts of what happened on may th that led to the final warning and then what happened on our show in october that led to the termination and by that i mean on may th what happened  of two thousand and eighteen the plaintiff ended up emailing his supervisor mr shelton about whether or not a certain type of document should be accepted for an insurance change mr shelton ended up in e mailing the point of unexplained here's why we ought to accept this the plaintiff's response to that was completely inappropriate he ends up e mailing his supervisor outlining why he thinks he's wrong and then when his supervisor is meeting with him he gets company policy in the her that is not correct and again i think that your i think that you're afraid to do different things on the final warning that the final warning the document that was not accepted was something that should that should have been accepted you're talking about something that then later happened in october that led to a storm in asia and if you move to the situation in october the document that the plaintiff did not accept your correct that was a document that per the company policy was probably not something that would have been accepted but the job of these claims and these are these people in mr thomas its position their job is not to simply follow the road policy their job is to try and help out the agents all so your position on the ma personas that the conduct and mr thomas reaction to that when confronted with that was so egregious that that's what led to the final it exactly judging and that was that was the point that i was making it was judge murphy's question is then and so if we don't accept that it was that egregious or there's judge murphy has pointed out we see a mixed record that reviews as far as just memory lace ins and dealing with agents than is that subject to question or that that's real that that's why he got the final warning i don't believe so judge and the reason for that d is because the plaintiff still has to come forward with a pretext and in this case the plaintiff clearly admitted that the only evidence he had that his final warning was the tally of tory was that he had complained before the plaintiffs testimony on that point was he was asked the question what evidence do twenty seven the final warning came after you complained to human resources and the fact that you believe jared knew about your complaint to human resources do you have any other information or knowledge that farmers issued you the final notice exhibit number twenty seven in retaliation for the fact that you had complained to h r answer i don't know simply coming forth and saying well because i complained i now have a green light for any discipline that is issued to me after the fact simply does not rise to the level of three to six so in the situation that the prior communications the eight counseling that mr shelton had with the plaintiffs in this case those are simply a lab for we're the we're the company was at the time in trying to deal with the point what i would submit to you that even without those prior warnings because of the plaintiff's behavior simple getting up and walking out on a meeting that would be something that the company can exercise its discretion and say we're going straight to a final warning if we can disagree with that decision the court can disagree with that decision and say well if i was the one that was making that call i might not involved to a final warning but there still has to be actual end of that he ended up disputing that he says well d i thought the meeting was over because you told me to accept the document so i got up and left but he does not dispute that the meeting was still going on at the time that they were having that was that mr that mr shelton excuse me about that was the way that mr that the plaintiff's testimony was not that the content the context of the meeting was over but well once you told me to accept something i'm going to accept it i'm going back to work mattie that was basically the testimony in the situation is that and recorded no ma'am that is not a meeting that is reported on that's not one of the final all that ended in terminations that is record we have the will t the recording with mr sounds and another supervisor meeting with the point of to discuss that that meeting is also with or that does the plaintiff secretly recorded that as well and that's part of the record is there a policy in the record about policy on when supervisor should record meetings no there isn't but judge well i want to clarify no supervisor ever recorded a meeting here the recordings the only recording that farmers made that is part of the record is the phone call with the consistency and and a question of you know what was with the practice range so yes it's true that nothing says they have to follow it but the fact that they didn't use evidence of