the district court ruled that claims of had met her prima fascia case for employment discrimination on the basis of her race and on the basis of her age the district court however found that the pla did not or the evidence did not show that plaintiff refuted defendants cooperate reason for her term a nation i'd like to start off by pointing out that one of the exact same elements of the prima fascia case that similarly situated individuals were treated better than playing to was found by the district court i believe on page a seven through eight of the judge's opinion it actually says that  if there's evidence that the defendant applied his rule disparate leap towards point zero with that said pretext may also be shown by that exact same element that similarly situated individuals outside of plaintiff protected class were treated better than plaintiff and so plaintiffs argument in essence is if the district court found that that element was present in her prima fascia case those same faction also be applied to the critics argument to finish pro off or reason for terminating plaintiff is based on five events i call them five strikes that culminate in the reason for termination and very briefly i'll take each one of those individual e there is a corrective action issued on november the nineteenth two thousand until kelly became her manager on november the nineteenth two thousand and ten a plan to was issued a corrective action for an alleged patient complaint now plaintiff's first affidavit from another nurse felicia carter who was present in the room at the time the pain shit allegedly had this problem with plaintive kelly even says that the plaintiff sorry the patient wanted plaintiff removed and kell care for the patient she was there and that there was no problem and i think that evidence right there is enough she refused to finish profit reason for this particular corrective action that plaintiff was ruler unprofessional that the patient had a problem when kelly who right i'm sorry carter who's right there says that there was no problem further i think what shows evidence of pretax is the fact that kelly says that the plane that patient was unhappy and that was the reason for the disciplinary action however there's a different reason that's documented for for the plaintiff this is disciplinary action and i think the then the documentation is also inconsistent the notes that allegedly support this violation are dated august the third two thousand and ten the corrective action claims that the incident happened on ten order to patient care technician to assist with their procedure and of course claim to denies that and says that you know it was made up and that again there is no evidence that any of this stuff happened other than kelly saying it happen and to address the july twenty eighth two thousand and eleven corrective action the three separate violations first of all kelly testified that there's a policy and a practice of hers to notify individuals right away if there's any problem with their with their work or with their service so that it can be corrected which she didn't do this with plaintive so these three alleged violations just piled up and she never said anything about it until issuing this corrective action on seven twenty eight eleven one of those incidents involved patients being rude  point to being rude to a patient there's another nurse who's not african american who was under forty who was also named in that same complaint however she was not disciplined the defendant has to distinguish and say well plaintiff went back into the room and involved in this incident with the patient but only plaintiff was discipline so and i think the defendant's failure file which on rules and policies is evidence of critics and i think that goes through the four straws in this last incident was the alleged final straw and i also think it's important to note that because there is evidence of pretext of these four for this last incident could not have been the final straw if anything it may have been the first trial which would not amount in a culmination of events that even if this were a genuine complaint even if it was gene we generally believe by kelly there are still so many other similarly situated employees who were not disciplined based on a single complaint there's a martin  a patient there's evidence that a patient complained patient her entire team complained about her and she was simply reassigned she was not disciplined definit argues that mr martin was disciplined seven time again defendant argues that there are numerous violations and that they were disciplined after numerous violations but again these corrective actions there's evidence of pretext for these corrective actions and and i'm not conceding that if may have please the court robert dignam for st james hospital i want to point out at the outset in response to what ms cunningham just said she continues to argue despite the facts in the record instead of arguing the facts in the record at page ten of this brief of this district court's order granting summary judgment in response to the plaintiff's allegation that she was never told about the problems that she was creating for the hospital based upon her patient care the court said as to the defendant correctly points out the undisputed evidence shows that plaintiff was actually notified right after each incident the hospital followed its rules the hospital's rules are based on what are known as the franciscan values to comply with these values arlene simpson was expected to among other things used tact sensitivity sounds judgment a professional attitude and when relating to patients and family members and also show respect empathy and consideration to those individuals simpson failed to follow the franciscan values and that is the reason that she was discharged she is asking this court now to sit as a super personnel department which this court has repeatedly declined to do what simpson does is say that her manager marine kelly alleged that she did a bunch of things inconsistent with the f can values or her duties as a nurse there it is incorrect each and every complaint about simpson that led up to her discharge was an independent complaint by either a patient a family member of a patient or an independent doctor's marine kelly as her manager naturally had to deal with all of these complaints but she did not initiate a single one simpson acknowledged in her deposition that the hospital has a duty to respond to these independent complaints and a duty to take corrective action when warranted yet when the hospital finally acted based upon all the complaints against simpson was that added up she then claimed it was discrimination based on either  gender her disability status based on pregnancy or her age or her rates she admits that these family members and patients made complaints about her and that doctors made complaints about her regarding her work performance and her behavior she does quibble with some of the facts just like she quibbles with the fact about whether she was notified timely which she was she said things like how does the family member know i was rude to the patient if the family member was not in the hospital to say i was root to the patient well she discounts the possibility that the patient told their family member who subsequently reported the problem to the hospital these are the instances of unacceptable behavior she was dismissive and rude to a terminal patient who tried to reach out to her in a hospital room and told her she was too busy to talk to her she reentered a patient's room to argue with the patient who had reported that her perfume was making her sick to tell the patient i'm not wearing perfume but thanks a lot now i'm going to need now i have to take the next patient this is her not living up to the franciscan values she we entered a patient's room to argue with the fiance of a patient because he had recorded a problem with the quality of her nursing care and finally as alluded to by ms cunning she entered a patient's room the day after a patient had her knee replaced upset with the patient for asking for ice and unplugged her i v morphine that retaliatory act is what earned her discharge not discrimination simpson produce no direct evidence of discrimination she has not one scintilla of evidence that anybody had a problem with her membership in any of those protected classes so she turned to the indirect method the district court understood that she never produced any indication that a male or expressly non disabled employee allegedly suffered any better or had any better treatment and so what crime  not proved as to those counts the court did accept that or at least believe that simpson had stated a crime a faster case as to the age and race claim based upon her putting out alleged other employees who supposedly were treated better and that is the only instance in which the hospital respectfully disagrees with the decision we do not believe that the evidence was adequate to even have stated a prime a faster case on the age or race count and here is why simpson named four compare it to yours she named a pig she named gail dario they both were rude to a patient but only simpson went back in to argue with  the fiance for complaining about her she named a person who supposedly was who was in fact tardy all the time but said she never got fired she did get fired she named nurse mendez who she said performed poor patient care there was a lawsuit arising out of that matter that nurse mendez was fined to have done nothing wrong the case was voluntarily dismissed there was no reason for a sanction and asked to nurse martin all that simpson could muster was on a particular day she had a team of patients taken away from her but didn't experience a sanction the hospital had no name of a patient no date no alleged conduct how could that be a comparative or when there was no evidence in the record but ultimately the hospital isn't entirely satisfied with the district court's conclusion that even if simpson had stated a problem with that she case as to age and race discrimination there was certainly a legitimate and nondiscriminatory reason for the discharge decision and the law says that even if the hospital happened to be mistaken and that simpsons unfortunately had a series of in accurate and hypersensitive patients or family members complaining about her the hospital was still entitled to summary judgment even if mistaken because they would have to be some evidence of a discriminatory animus and that is completely absent in this case therefore to be clear the hospital does not believe it was mistaken in any way arlene simpson horribly failed to live up to the franciscan values on repeated occasions culminating with her decision to stop the i v pain medication of a surgical patient on her own doing and for that and she was terminated there is no discrimination proved in this case the district court's order granting summary thank you really quickly honors i think it's important to note that kelly have the discretion to determine what violated the franciscan values i disagree with counsels presentation of plaintiff's position i don't think that she's it meeting that she engaged in any of the conduct that defendant has argued and again i think this argument the brief is focused on the pretext issue whether or not there's evidence of a pretext and i think the fact that  her testimony is very clear she didn't know about any of them until she got the corrective action of seven twenty eight so presenting her with a corrective action is not giving her notice when the alleged actions happened prior to conclusion i think these similarly situated individuals need to be looked at more specifically because they do have multiple infractions where point of may have one thank you thank you