morning they please the court harvey sanders representing sharon campbell the court below found that there was a prime official case and illegitimate nondiscriminatory reason and we don't know either side challenges that this case really turns on the question of pre and this title seven sex discrimination case there are three errors below one the court's decision on the catspaw issue to the course assertion on the similarly situated question and three on the quantum of evidence that was and that mr john doe did not make a specific recommendation and therefore the decision makers were not he wrote up the report dispositive lies and that's that's my position and while the court below said that that there was an independent investigation the only investigation was to review the general report and the documents that mr jan drove submitted so there really was no independent investigation and mr  not report to his higher ups about the fact that it was a routine practice within that department for employees to not necessarily directly correspond their actual time in the field to the time and their and their reports so the fact that that information wasn't presented to the decision makers deprive them of information that would have been important to them in making that decision so mr jahn dro we contend  is ultimately the person behind why this decision was made and the fact is that he selectively enforce the policy there's no question there was there's evidence in there in the record that employees when they were out in the field did their work but might but might enhance the description of the work that they were doing in order to make make themselves situated but it does show there's a policy with regard to missing people or i think that's right so there is a policy for it but that and i think that when you say pretext i think what is what it says is that when things are escalated to the point of h r and higher ups in administration they're going to turn it into the policy and as it was in practice in the field however lots of this conduct occurred without ever getting reported and lots of those other people and particularly the people in mr general's department if you will got away with it because it was just a practice in the field and in fact at the meeting on the on first with meeting or the or the general meeting the union rep who's which is when she did her last reading and three thirty one should be off the clock she did make time entries reporting what her activity was during the earlier in the day and because she had readings that she had made earlier and entering the readings as part of the job to do it some time because he didn't give her the computer he didn't give her the eye trying to exactly so because she only had the laptop computer which stayed in the vehicle she couldn't enter the readings as she did them so she wrote them down a sheet of paper in order to enter the later and when she entered them later in that two thirty to three fifteen timeframe that was still doing work during that period of time and when she clocked out off of the computer when she logged off of her laptop at three fourteen that was her last entry of the day and again that's you know if you look at and we make the reference of the record to her reports for other days there were lots of other days where she clocked out of the computer at three fifteen three sixteen and they never claim that she wasn't doing her job because she clocked out of the computer you know fourteen minutes early or fifteen minutes early because her shift ended at three thirty and miss canfield in her declaration says she thought ms campbell was one of the hardest working employees at national fuel so i mean again this gets to this question of over the course of a shift this practice of bagging where employees did work earlier in the day but then reported on their time sheet as being worked on later in the day in order to fill their day because they were more efficient earlier allowed about that she did the inappropriate about that i mean it's not directly accurate in terms of that she she did the work she just didn't necessarily do it at the exact time that she reported it into the computer back to the computer after each reading which seems  know when mr general gave her the assignment for the day and this is the first the only time mr gender or whatever given an assignment like this to give a a book of meter reads to us a service person she asked him well can i have an i try and he said no you know how do you want me to make these entries how you want me to do this i don't care to just get it done you'll figure it out so i would i would contend that that that gave her the discretion in terms of how to how to go about her day  undercutting the legitimate reasons so here the fact that mr jenner said he was looking for ms campbell because he had paperwork to show her but yet in full time between the date in question until the date of or terminations never presented her with the paperwork it was so important that he needed to go out into the field to find her rather than wait until she come back came back that day the accusations that he made in terms of where he allegedly observed her between two thirty and went to be a clock are inconsistent with  the declaration they're inconsistent with the plaintiff's characterization of her time he had told her previously that she could stop at her mother's house which again suggests that he had given her permission to deviate from her course over the course of the day and yet she stopped by for five minutes after he she had gone to him and said my mother's been diagnosed with cancer is it ok if i stop by periodically just to check on her and he said it was fine and out after the fact you saying that that was a problem she didn't admit to falsifying her records and she didn't deny making the stops she the one who volunteered that she stopped it's important she is the one who volunteered that she stop that office max and he only interrupted her to say oh but you also stopped at your mother's in your own home before she had an opportunity to disclose that she never had any reason to hide the fact that she was making these stops because her understanding of the way that the employees did these jobs in the field was that they had that kind of discretion to do that so she would have no reason to hide that you were right or me peter kept a watch on her but the computer keeps a watch on her but the computer it's important to note that the computer reports when she makes entries into the system it's not reporting her out the day so to say that her last entry in the system was at a particular time doesn't mean that that's when she finished work so the record shows that she only half or less than half the readings that she was assigned is or anything about where there are that's unusual when when people are record to show that thirty eight out of seventy was you know within the range of normal i don't think anything directly record on that but i think what's important is that meter reader had that route the day before and so therefore had attempted to make those reach the day before and these were the showing up and not being able to read know where she only got time to less than half but she also had other service calls or she had a service call in the morning that she had to make as as a service member so she was doing repair work and then again after lunch she did another  trying to get a handle on when or whether we draw anything from the fact that she only did half i think that this was make work essential me because they weren't that busy and so he said here here's a here's a meeting reading were to do yet whatever you can get done done i don't think there was an expectation that she would get a lot done but again we have here an employee that was described by ms canfield as being the hardest working employee that she had ever supervised national feel like you can't say that you reserved two minutes for a bottle we'll hear from national her around for all that they can afford to pay for that mr janda did not follow her around the entire day or on or just part of that he didn't steal any time now he's the supervisor he attempted to contact her to get her to sign some papers when she did not return the phone call he checked the g p s the g p s on the g p s said that she was it a tim hortons tim hortons was not part of her route so he then went to the tim hortons use the public bathrooms and places like tim hortons so he were knew that so he went to the tim horton's to find her she was gone by then the next time he caught up with her she was at her home and then followed her around he was looking for her to sign some papers that day your honor we don't this is a utility company driving utility trucks responsible to the public we don't expect our employees to go from tim hortons to office max to their house to their mothers house and then claim that they are working and get paid for working that is not what a utility company expects their employee used to do and then to turn in a time sheet where she has manipulated the lunch hour because she specifically overrode the computer sheet to show their lunch hour was thirty minutes when in fact it was close to forty i believe the ten minutes she didn't get disciplined for going over the line she got disciplined for falsifying and  the time sheet make it look like she was working when in fact she wasn't so she was taking time away she was falsifying her time sheet and then she  sure there is a computer sheet in the record and she testified she never seen it before but it noted that she went on break at eleven eighteen her time sheet where she no she can override she employed eleven twenty five is the time when she started her lunch break then the computer she shows that she was on route again at noon she overrode that and put on the computer she thought she left at eleven fifty five that is because they're entitled to a thirty minute lunch so she manipulated that plus her time sheet that she turned in showed that she was working until three affidavit would have to take in less than five minutes and so she would have had plenty of time to take the additional meter reads that were part of the record also i want to point out that under the cat's paw theory you need to establish that mr jan drew had some discriminatory intent in order to take it back to the question before us she was very clear that her indication that he had some discriminatory intent was based on just a feeling he had never sad or done anything that made her think that there was discriminatory and time i also  he treated them much better than he treated her the two people who are also accused of theft of time or use of a personal phone or doing doing personal business reported of those people were reported your honor every single one of them in fact i would like to make sure that you are aware there is now one identified person in this record notwithstanding what mr stander said now one identified person in this record that mr j en route knew about engaging in similar activity and did not report it up mr hassock called mr after he cashed one check he made one stop he called mr chandra he self reported he did not falsify any document mr chandra reported that up the chain of command keith richards is the one that made the decision he prepared the disciplinary note his initials are on it in the record is the email where he and others up the chain of command are deciding exactly what discipline to impose so in the brief you have a lot of high paid people who have to decide whether someone who stops and cares for a paycheck should be disciplined or we vetted through a number of people this is a union environment and we have to make sure that what we are doing is consistent with the union environment the other indigent also had an automobile accident yes and a number of people have automobile  me filed a false test station she filed a false our test station that she had used her phone solely for business purposes when in fact five of the phone calls were personal phone calls to and from her daughter she also was found to have made an access of number a personal calls to employees during work time she received she was reported and she received a written warning so she received something it is not what did sharon campbell and the theft of time in the report the way it was characterized no no your honor there were three things theft of time falsification and manipulation of the time sheet and not being upfront with her supervisor at the time but if if i could just for a moment the lost my train of thought there  so with regard to each one of them mr jan drought reported every single one of them up the chain of command and in the plaintiff's brief it says that it's their contention that the presentation to upper management was a discriminatory act in fact he reported king hassidic and me all up the chain of command didn't he was in her report harsher in the sense of talking about a time which i understand is the ultimate crime when you work for a national view what about the theft of time mr hasek engaged in when he had to stop and report an accident i said he got reported for theft of time for that i remember when i asked him to say laurie me was faffed because she didn't reimburse the company for those phone calls and was directed to reimburse so there was a knot of time but of money somewhat comparable  might think she only got the written warning he did prepare the report and his report there's absolutely no recommendation with regard to borat but with regard to the plaintiff she was previously caught  by a member of the public going to her mother's house in fact it was only six or seven months prior by a member of the public going to her mother's house presumably drinking alcohol handrail handled that internally there was no consequence same with mr king there was no consequence with an encore operated report the tenth circuit's been very very clear about the fact that it's legitimate to make distinctions based on whether there's corroboration of the conduct or not and whether the decision can be sustained or not mr gentile reported every single person there's no one person in this record identified that he knew about that he did not report up the chain of command and there's no one bit of evidence that he was motivated by discriminatory intent whatsoever plus mr richard does his own independent investigation including specifically interviewing the pla ff herself and the union that represents her also determined that determination was appropriate here and that was with a female attorney under all these circumstances we really believe the decisions below the ma there is evidence in the record and not just from ms campbell that mr gender out treated her as as being a lesser that he excluded her that he turned his back on her he ignored her that he threw her work assignments to her and that that was corroborated not just by  ms campbell's testimony but also by mr abbas and a male male employee yeah but did he report king has sickened me did he file reports with his supervisors that they had violated company policy so  same thing with your client and yet somehow that's loading the dice because what stiffer as that with respect to my client he accuses her of not just straying but the theft of time component she meant that she had what she admitted was that what she admitted was that she that her entries did not exactly correspond to the time that she did the work because she couldn't because she didn't have the i try she was given the discretion to do the work as she saw fit and she had no reason to think that she would need the fact that he makes that report with those three charges of theft of time accurate time sheet and creation of a document which true they were they were all true but yet other employees routinely did the same stuff and general would have known that all the supervisor would have known the name of those other employees to have compared but well but hackett and king are both employees that were and he reported has he did but not in this not in a way that would lead to his termination and  there but that's not the decision general made richards made those decisions but the fact that the fact that he reported them and the way he reported them he could have not reported them and it package gets five days rather than a terminations i don't understand i lesser so that they wouldn't be disciplined mr kenge here mr mr king it was mr king was reported on his time so that he was in place a but yet a bus driver accused him of passing him when passing the school bus when the when the flashe run in a different location was from where mr king was so he falsified where he was and this wasn't just a random member of the public it was a bus driver who would have known about mr hacking's vehicle number and let mr king's vehicle unless mr king was where the bus was so that there was some real they had a g p s they could have gone back and corroborate that he didn't use the g p s to to track mr king down when the when the bus driver reported that lead to a theft of time as well well it would have been because he wasn't where he was supposed to be so he wasn't doing his job but yet he didn't he wasn't accused of all three of those violations so mr king wasn't terminated when i look at your complaint you're going to say that johndroe mr reported misreported what has it actually did and such that that has it would not have been disciplined is that what i'm going to find in your complaint i don't recall my i don't think i will fight i don't think i will find that i don't i don't i don't i believe we are legit that mr jan drove treated ms campbell differential