her argument this morning is more roe against the indiana department of transportation good morning your owners may please the court i am eric hearts and i represent jeff monroe in this appeal plaintiff appellant against the indiana department of transportation for the court we will refer to them as the state  appealing the district court's grant of summary judgment in favor of the state we believe that mr monroe has produced sufficient evidence which a jury could find that he was fired  exact comparative or you don't need to find a clone but to make a flexible in common sense analysis and of proffer comparison mr mesereau answer i'm i just want to make sure i understand the scope of your appeal are you contesting the district court's disposition with respect to the claim for a reasonable accommodation we are not you are ok thank you that the made some distinctions on to whether there was actual the district court essentially found that there were that there were similar behavior in all three cases but found different violated multiple employees complained about him and it was about the end work environment that he created a hostile work environment or an uncomfortable or intimidating environment he was not  correct your honor the the district where did seem to place so fearful weight behind that changing of classification of employees that happened i believe first of july in two thousand and eleven we have some issues with that the first issue i would say is that it's a distinction without a real practical world difference they changed these employees from what they called non married employees to earn classified employees the non married employees were under however they also had a pure right at the state employees appeals commission the same commission if their terminations are the reasons for their terminations file they did a public policy  we feel that that's a distinction without a difference well with respect to patrick there's no evidence that george was the decision maker for the discipline in twenty two and right he was involved in the decisions to discipline patrick wilson in branson i'm i believe the record to show that and specifically what was his role as part of the decision maker along with mister you know i'm not even sure if they're the same people back in two thousand and seven but as part of the decision maker in the discipline with regard to the personnel paula with regard to the classification of employees there's also nothing in the record to indicate that the decision makers while deciding this discipline or this decision on mr comparatives there is nothing in the record to indicate that they considered the differences in the classification of employees whether before the change or after the change and even if that distinction you know that the district court made mr branson the third compared or his demotion would still also be argued believe the evidence of better treatment the district court found that  did find that mr branson was treated slightly more leniently or or said i believe to quote one dist non disabled employee treated slightly more leniently than mr monroe was insufficient to defeat summary judgment  branson was had the same concern what with what the well he was demoted after there was a physical altercation with a coworker right he was demoted in two thousand and twelve and then  no i'm sorry he was he was placed on suspension while in the same role as mr monroe who was terminated he was placed on suspension in the fall of two thousand and twelve mr monroe subsequently was terminated in february and mr branson then in the same spring of two thousand and thirteen was then demoted from his highway tech supervisor which was the same position down a slot i believe to a uniform and but you agree that mon investigation revealed a pattern of verbal abuse in the still he confirmed by at least eleven employee well distinguishable from branson where branson had i think because of the number of different complaints or incidents that he had i think you can show consistency because there were separate events with mr monroe no one knew in a position or in a position of authority no one knew that there was any sort of consistency the complaints or the treatment of his subordinates there was one incident on steamer twenty fourth where afterwards the subordinates went to complain on the twenty fifth during the course of the investigation that ensued they may have found out about some more incidents but it's not clear from the record that there were that there was you know on this state something happened on this date something happened on this date something have they said consistently but there really is not any evidence in the record that he consistently did that but isn't there a record isn't there evidence in the record that monroe subordinates stated to a member oh superiors that there was the consistence harassment and abuse they did but there's no record that's that there's no record that that that says he did this on this day he was he  short with us on this day he threw us all out on this day he was intimidating on this day they said essentially he's gotten worse lately not that there was any problems and so soledad that they all said they were going to quit or something to that effect right if they had to continue on their look at the record does show that the some of the reports of the investigation are mixed there were comments by other subordinates that said this crew has a way of blowing things out of proportion that if mr monroe raises his voice it's it's you know it's because he wants them to get something done that that it's motivation that he he's he's one that knows how to get things done and is sometimes short with people so there were mixed reports in that investigation at the record shows but to go back to your question yesterday that there were there were multiple employees right and do any of the comparatives have a situation where half of those comparatives support minutes went to the comparative superiors and threatened to quit on mosques if they were forced to continue to work for the comparative there's nothing in the record that indicates that they had to threaten to quit and i think that's an argument the state put forward and based on the facts that it was at the end of the same shift where the problem had occurred i believe mr monroe did go back that no one did actually follow through on  that threat to leave employment if mr monroe continued and while mr monroe didn't continue because he was fired a week later so they never had to make good on their threat isn't that right that is right ok did any of the distinguish mr monroe from his comparatives well i do i think when we look at the comparative seriousness standard it that is and your point is well taken that's a that's a serious  accusation of serious misconduct when you look at mr branson though a comparable seriousness i think is trying to initiate a fight with a subordinate or it's not clear if it's aqsa born or coworker at the side of a highway in fact when kim confronted with a comparable situation mr monroe deescalated the physical situation i think that we both of them are serious accusations of misconduct and i think that they are comparable in their seriousness but i do think that you can look at a new shooting a fight on the side of the road  compared and seriousness to allegedly mocking someone for not being able to hear right wilson there was no evidence he ridiculed employee because of a hearing impairment or tried to start a fight you know it was more general  threatening behavior towards employees or intimidating behavior towards employees the the state has also argued that mr monroe's was not a qualified individual with a disability and that he was not meeting expectations based on the of the events of january twenty fourth we we do agree with the district court in that  mr monroe was a qualified individual with a disability he did have a disability that limited him in a major life function which was sleeping and he had made overtures to his direct supervisor back in december well as again in january that the lack of sleep was affecting him that he was burnt out that he would like to have had a transfer two days to a day shift in hopes that he could get himself together  we believe the sufficient evidence was presented to the district court that he was a call fight individual with a disability and that the district court decided that issue properly whether he was meeting expectations based on the january twenty fourth incident was that whether he was meeting expectations based on that or january twenty fourth incident he had just recently with and i believe was on january seventh had his annual review and  said he was exceeding expectations across the board from an operation standpoint there is no indication that he was not meeting the expectation will in that last performance evaluation they also noted that he can sometimes become impatient and of course when things don't go as he was terminated well i do believe that the overall evaluation said that he was exceeding expectations i think that those were notes on things he could potentially improve but if he was exceeding then at that point you have to assume that these performers about anyway sions by supervisors mean that the supervisors are paying attention to what mr monroe is doing and that they do have an accurate sense of the situation not just between mr monroe and his supervisors but the way that he's treating his subordinates as well so to change course within a couple weeks based on one incident say to my distant pattern i think is a is a bridge too far  to it as the state the district court correctly determined here that no reasonable jury could find that mr monroe was terminated because of or solely because of his alleged p t s d at most munro's evidence shows that he has p t s d and that perhaps the unsorry perhaps the state knew about it he had it really doesn't have any evidence to show that the state's investigation which was prompted by the january twenty fourth incident with pretextual that it was a sham or a lie and just a to recount what happened in that investigation twenty six then current and former subordinates of monroe were interviewed this was prompted by the seven who originally complained of those twenty six eighty percent twenty one of them in some manner described monroe as being militaristic aggressive abusive and somewhat of a loose canon moreover several of those interviewed described that this had been going on for months if not years and then three of them pointed out that mr monroe and in addition to being virtually abusive and threatening all the employees with their jobs on occasion that he made fun of one employee in particular for having a hearing impairment and made fun of them for that and for having such an impairment this is others but the comparatives really aren't that similar in the material ways we agree they don't have to be identical but they do it be similar in the material and same supervisor same standards of conduct same type of conduct is it chronic vs acute i'll just go through mr patrick there is no evidence in the record that  george was mr patrick supervisor in two thousand and nine or two thousand and ten when patrick when the the patrick was disciplined what the record shows is that in his deposition in two thousand and fifteen mr george was asked the general question have you ever received complaints about patrick he said i've some have said he's direct from time to time but that was never connected back to the two thousand and nine incident that mr monroe testified and there's no documentation from about a two thousand and nine or two thousand and ten incident involving patrick in exit q which are the comparatives employees records  wilson was disciplined before two thousand and eleven which is when the change went into effect changing state it most state employees from just cause employees at will and so employee there's also no evidence that mr wilson picked on the disabled subordinate or coworker and i'll also point out that men when mr wilson acted inappropriately in two thousand and fourteen under the same standard he like mr monroe was given the option to resigning and keep something cation pay or be terminated he chose to resign leslie there's jim branson jim branson head it was the only employee disciplined after the two thousand and eleven that was not terminated at least among pears but his actions were too isolated incidents one of which wasn't even against a subordinate it was against coworker where he swear it we swore and threw down the squeegee the second one which caused his demotion was a physical confrontation to an employee into a fist fight then that would be a comparative but as i recounted earlier the investigation showed a chronic pattern of abuse and threatening and picking on a disabled  subordinate leslie i just point out that men monroe's prior performance appraisals do not really suggest an inference of discrimination that they don't support it his last appraisal was about a month of forced terminations and although he received and exceeds expectations overall he got to meet expectations for employee relations which sure that he did have some problems dealing with  moreover nothing that's in those positive appraisals overshadows the fact that the state scuse me the state conducted a thorough investigation and in her future twenty six people and some of that came out of the information that came out of that undermine some of those appraisals the positive appraisals are not some form of credit he can dip into to justify its chronic misbehavior but with regard to the state's indication that that meets expectations with regard to employee dealing with employees or subordinates would indicate a need for him and i don't think that  the term the phrase meets expectations would indicate any employee that that means that they need to improve it maybe for you know a high achieving employee that thinks only meet expectation but i don't think that that shows any sort of no dispute that he was that the state was aware of his disability that he had p t s d or at least believed he had p t s d and they've testified that the decision makers have testified that they did not disbelieve him when he said that he