the next case for argument is to go overseas orange read regional medical center mong this argument today i'm here on the left not the same case the later version this is the summary it's judgment stage i'd like to bring to the course attention a case decision this court issued two weeks ago of the gang versus it deals with one that a plaintiff can testify from his or her own information it's not self serving and precluded the district court below thought that it should not consider the self serving quote unquote testimony of the plaintiff in this case which was i believe clear area that's special panix page ten the district court also viewed its role as deciding the preponderance of the evidence and that of found insufficient preponderance of the evidence it was weighing the evidence and that is not the district court's role in summary judgment weighing the evidence is a jury decision determination i'd like to address this case a little bit reversed chronologically the end of the case my client was informed that she was being terminated by orange regional medical center where she worked the hospital asked her to work for additional weeks to help it train its successor and the evidence is clear that my client who received when you correctly add numbers of satisfactory performance evaluation satisfactory really performed all the elements of her job description she was being replaced by and asked to train one woman and then another both clearly much less qualified for the job than then and she she was the hospital then and this is a set up in a way a minor issue but i don't think it's that minor hospital that gave her the option to resign and waive her civil rights claims with a severance agreement and receive her vacation pay or not receive vacation pay and i believe she clearly had a contractual right to vacation pay the regional medical center brought up this policy which i think was clearly a policy that should not have been applied and it looked like it was boisterously and i will see provided that an employee terminated for reasons other than economic layoff or similar reasons would forfeit  the cation another benefit i think this is important because it's almost a small claim size claim but i've see this in other cases where employers are now holding employees hostage to their civil rights by saying w rights and we'll pay the vacation pay you think you earn a kreutz on your wage earning statements and i think if you analyze it fairly my client was invited recruited to the hospital that side offered a package which included benefits such as vacation pay the vacation part of the are visual policy is not contractual anything in their employee policy so a person should even look there when you do look there i think you can fairly analyze that policy is being essentially employee if you screw up if you do something misconduct something wrong all you forfeit and their words are automatically forfeit the the accrued vacation time to say it's totally up to us as to whether or not you get that vacation pay we can just decide you're fired and you don't get any vacation pay i don't think that's right contractually and i also also think in this case where my client was actually requested to work on an extra four months four weeks and then the policy says you have the hospital would give you the right to take leave so my client really could have said at that moment you know what i'd like to take my vacation now and then i'll work the four weeks after taking it that would be a good faith she could do that under their policy so i think it's just as it was the evidence of race discrimination that she was terminated because the race of show that the acting nursing director when she moved into the business she was the same level as my client got moved into a supervisory role and then orchestrated events where she would save her friends or caucasian everybody mentioned in my brief conversation my client orchestrated so my client would be forced out and her friends would take the job now my client the second aspect of the case is my client complained of race discrimination the way similarly the other evidence of race discrimination in her termination and those of the two affidavits i saw one of the store and one from the white woman was also also left out that she my client she wouldn't talk to or wouldn't supervise her she gave her no help the hospital good neighbors help my client complain to the c e o of the hospital directly said i'm being treated and given less resources than all other managers my client was the only afro american as i put in my brief it's like a schoolyard child saying everybody's beating up on me if the teacher knows everybody else are boys and she's a girl we know it's gender in this case everyone else is white my clients black may please the court my name is mary smith and i'm an attorney with jackson lewis we represent orange regional medical center in this case we do believe that summary judgment was properly granted by the district court a review of the record whether it's a do novo review or a review of how the district court rendered its decision really does show that there is no material issue of fact with respect to ms to those race discrimination or her retaliation claims with respect to the race discrimination claim is to bow presented no direct evidence of ra district court properly analyze it under the mcdonnell douglas framework and look at the circumstantial evidence that she presented the district court found that she did not meet the prime official case because she failed to stablish that she was qualified for the position or that she had failed to present evidence showing an inference of discrimination we agree that she failed to present evidence that really warrants an inference of discrimination at the prime official level she were a lot of relied on inconsistency in the manner in which she was termed in which she was terminated individuals during her for we transition on some of the projects that she had been working but she did not and there's no evidence in the record that she trained ms edwards who said words had been the interim administrator of the labor and delivery department when was to go was hired and is edwards actually had trained  go during her orientation to orange regional medical center so there really is no inconsistency they put the same person back in an intern position that had been in the interim position prior to her hire and again if you look at were three people you know they were not and if you look at the time sequence here ms to go was hired in june two thousand and nine at the time of her hire there were two hospitals there was horton medical center and arden hill hospital those two hospitals were going to be closed and mold you know merged into one large institution which was orange regional medical center that occurred in august of two thousand and eleven so from two thousand and nine until august of two thousand and eleven there was a merging of two different hospitals the staffing in the hospitals as well as administrators and there was movement among administrators the nurses she was in charge of also all the regulatory and procedural aspects of running labor and delivery if there was a regulation that required a certain specimen to be sent in a certain time period she was responsible for making sure that there was a policy in place and that the policy w was followed so she was transitioning policies to the person in which during that four week period she there was also testimony from michelle's and the c e o scott tulis that and others in other departments and in other situations individuals administrative level individuals had been terminated and replacement replacements had not been in place i think it's clear when you look at michelle's testimony that she did not intend to terminate  intended to place her on a ninety day pick her testimony is very clear in that regard when she met with her supervisor the c e o and she was an interim administrator he directed her that we do not place administrative executive level team leader leaders on ninety day pips we terminate their employment and harm mr bo's employment was terminated as a result of that conversation mr b to his testified very clearly that he supported the terminations of both ms to go and the emergency room director so we believe we've established legitimate nondiscriminatory reasons for her trauma nation and i don't believe that even if even if you get give this to her the benefit of a lower threshold for prime official case we don't believe that she's established that our reasons are false and that her evidence in this case so those establishes pretext to warrant a trial we it's very clear the ms to go disagrees with our with our nj regional assessment of her performance she provides excuses but she does admit in her deposition testimony and even in her declaration as to all of the underlying concerns that the hospital had with her she admits there were low patient satisfaction scores in the labor and delivery department she admits that she did not effectively cross train all of the nurses and cross train of the nurses was directly related to her ability to receive an additional clinical coordinator and get budget approval for that very high marks in her first annual review in two thousand and ten excellent meeting class which i guess is the second highest in as your adversary points out in the in the later evaluation looks like it's a meets if you add the numbers differently than the administrator did well michelle's at her deposition she did testify that she could not recall she checked two boxes in one section she checked to me the expectation and below expectations box if it was a meet the point was added if it was a below the point was not added which brought it to my meats minus she couldn't test she could not recall at her deposition exactly what she meant but she assumed that she probably should have you know mensa below and that's why she came with a meat's minus but again michelle's testified that at the time she wrote the performance review which was in june of two thousand and eleven  with respect to the news to bowe's arguments about the clinical coordinator there there is evidence in the record both through miss shoals and mr patil this is testimony as well as ms to boast that not every department had a clinical coordinator that in fact the nurses had asked for fifteen clinical coordinators and the the but they had a bit receives approval for only three by two thousand and eleven and in fact the clinical ct the educator clinical cornea position was approved from this two goes department and she was in the process of hiring one at the time of her terminations so she was provided with proper guidance as well as mentoring with respect to her terminate her retaliation claim i'm going to jump to the pretext argument that scott to us had any knowledge that she had a complaint at any point of race discrimination or of a specific racially directed remark on his testimony is that he was repeatedly asked for budgetary approval throughout you know as c e o his request came across his desk every day and he routinely deny them it was always based upon a review of the production threshold in that particular department and whether the department head was meeting the production threshold and if they were not they did not receive approval for any additional full time terminated she testified that there was no conversation with her when she met with initials about the four we transition in any way related to a later conversation with her in a separate conversation with her where she was offered severance in exchange for at severance which included her vacation pay in exchange for a written release it is a practice within the hospital that if an employee is terminated they do not receive vacation pay and we provided it to the district court evidence of other white administrative level employees who were terminated who did not receive vacation pay the individuals that mr diedrich references are all plaintiffs and other litigations against aren't regional medical center none of their claims none of their employments relate in any way to m bo's they reported to different supervisors different decision makers human resources just carried out in an in a formal policy and practice with respect to ms to go and a vacation vacation is not guarantees that a formal policy th hot depending on the position and the basis for the terminations and whether it's a regulated position the individual may be offered the opportunity to transfer to change their terminations to a resignation so that determination does not have to be reported to regulatory authorities and in the process of doing that their offer to release the release generally includes a vacation pay but if someone is terminated and they and their human resources does not make that determination to do that then they are terminated and they do not receive they forfeit their vacation pay for discrimination everything from the very beginning of my client's higher recruiting her but then not recruiting any successor by not recruiting from the outside the high school was assured of having a white succession successor  to my client her writing her but not on factors outside of her job description and never discussing with her the criticisms and lastly not good at going to the end of her employment not giving her that three month pep the hospital policy is progressive discipline my client received no progressive discipline whatsoever she successfully handled the move to straighter in the emergency room department the emergency room services department also did not receive and have been about the same time and names and you're on this i'm right and i'm just i'm just making sure i understand the record correctly i don't know if she received i think she did i think she was fired i don't think she received the pep but but the policy was schultz was to give it and it's clear here that the point out of that is there is another person who was fired terminated who did not receive a peer so what's your point you say everybody has to receive well ms remember was supportive of other employees rights and either not competitors i think it's i don't think everybody needs to by see over two hours and that is my side successfully handled her job of safeguarding patients in the move of the hospital from the two old decrepit institutions to the new medical center patient satisfaction scores would be based upon being  decrepit center now they're in a new center it is easy to assess but didn't she admitted this course it's not going to run its course and never gone up prior to being hired and it wasn't part of her performance evaluation it's outside of her control as a name if she had been given three more months with the new assistant she could have had everything work fine and satisfied all there not only the job performance requirements but also these additional caught performance but by getting rid of her right after the move and preventing her from proving herself if she needed to prove herself i don't think she did need to prove herself because if you d