because the case law off is that when it arises from different facts that you can bring a separate case the events that occurred better the subject in this case didn't even occur until begun one of the factors to consider in whether claim conclusion bars the subsequent case was whether there was a pool in fair opportunity to litigate those claims and in this case the before by the time exercise of his title seven rights in the previous case right right it is sequential but it's seven years apart and involved different actors different damages and so biased towards damages have to be the same to none of those factors were present to your question did we seek to add no we did seek to do discovering into the reasons for the discipline and were barred from and explained that once the plaintiff presents evidence of all these different irregularities then the case is entitled to go to reach a jury and this case we presented evidence of all sorts of types of pretext which while perhaps not one certain event would have supported a sufficient finding such that the jury gets to decide the case taken in totality as the fast in their case says it must be then these we did provide sufficient evidence that a jury should decide whether or not the employer's conduct was illegal so i wan talk mostly about her she was the person who actually made the decision in this case we talked to the briefs about the different ways that there was several different actors according to his declaration was reviewing all the evidence all the documents that these other individuals were submitted to him so what we have to look at is is there is there a dispute th client by late of the integrity policy of the company in the group the question is not that he violated that whether he had a an excuse or at least  he was given a written explanation right he was given him and he was told he violated the integrity policy by changing the time cards right no  exact language here he was given pretty it was tied to the integrity policy and it was tied to the time cards and veiny plays yes and it wasn't clear was he alleged to have directed the time and changed the time card was he a eged to have made the changes it's not clear what difference does it make he's the he's the i mean all of the evidence that they collected was that he instructed people who who reported to him to change entries on time cards actually your own that's not correct and some of the statements say that they these people were not present for any such direction to change the time cards without  actually knowledge the people who changed the time cards the people who actually made the changes said that they were directed to do so by mr priam correct yes they did say that ok and so the issue isn't the issue here in terms of the discipline that he received so there are several and we have to look at the decision makers perspective the information he had and there is a lot of information that he had that should have suggested parnell changed the procedure and nature made very clear that we were to get a driver's signature before we made any changes so that had been done before this investigation even begun and as and what's your point i don't understand their disciplining him for changing the time cards so he sets a fire and then he comes up with a process fo doing precisely what mr prime minister had done it was it was mr moore the decision maker in that instance he received well it's she wasn't disciplined and that's my point well let me let me broaden the question a bit then because i wasn't clear on this from briefing isn't it the case that if you're going to make an argument that others were not created the saying as your client that you have to show that it was the same decision maker to be able to make that argument no your honor what we have to show is that they are similarly situated there at the same level no don't you have see that mr moore made the decision as to the others as well as to mr pyne isn't that what the cases require your honor i don't believe that that's what the case is requirement to that well what but let let's focus on what the cases the you put in your brief on this issue right in that in that u p s put in their brief i'd like to know what your understanding of those cases is with respect to your argument about others says this was one of the documents that was submitted to mr moore and in that document she said she was doing exactly what mr prime was accused of doing which was allowing her supervisors to make changes to driver time cards without speaking to the drivers st in the what they did she engaged in the witness tampering that was alleged against your client the witness tampering realize supervisor is it's a curious word here because there are supervisors who are reporting to him right right but none of the supervisors during the investigation told the investigators that mr pyne had told them what to say during the investigation or that's not what i said what i said was oh i didn't i wasn't i wasn't trying to repeat what you said i'm just asking you that question right did the supervisor during the course of the investigation tell the investigators that mr had told them what to say some of them did say that but it's not mentioned as a basis for the discipline so if you p s believed those people mentioned where where where does that need to mention well it was they had that could be incorporated into that answer but if they believed that his trying to dissuade people or tell them what to say was a reason for discipline why  pion with given relatively modest discipline in relation to fairly three just misconduct u p s after learning that there is a potential time card issue conducted a very thorough investigation and through that investigation it that investigation also determined that mr pi and had been directing office workers working under him to change the recording of their overtime specifically if they exceeded a certain amount of hours in a particular day instruct them to move those hours to another day so as to avoid overtime obligations again exposing u p s to significant liability the investigation further determined that mr pyne and once he was caught for these things he went to his supervisors and said let's say that there was a miscommunication between me and you but stick to the story the investigation further counsel i think what the  the safety numbers that seems to be a quite different rationale than by a lady and integrity policy that that seems more than the evolution you know like a distinct change sure per that that in addition to the time card issues that there were these sixteen production issues but that's not corroborated anywhere else in the record and in fact matthews also addresses that and says that if somebody gives  rationale for discipline but that somebody is not the decision maker in this case mr braun or his stripper then that that is not that can't play into an inconsistent rationale are you are you saying that the time card issue was always on the table yes so been integrity violations in relation to hard preparedness and adjustments council has taken a position opposing counsel taking the position that u p s only in a thirty six dollars deposition later said that that there's but there's nothing in the notice that makes reference to that that's correct your honor why why can you p s rely on the influence of witnesses as  reason for the discipline if it's not in the it's not in the notice and really i don't i didn't see any evidence that that it came up in the meeting either you know the reason why you can rely on it is because this was at the forefront of the investigation it was in all the the statements taken by the supervisors mr pie and him self was interviewed about these issues in late may so a couple months before that disciplinary notice and in that interview he was asked extensively about these witness tampering issues and he gave responses to it and so the claim that this came out of nowhere is simply not true now with respect to whether it was written down in the disciplinary notice it wasn't the case law doesn't require that that's what he stands for that you can give kind of a general explanation and then if say in litigation you're required to be more specific as long as you're not you're not changing the rationale later and you just become more specific you can do that as well as does matthews or or or some other case permitted the employer to rely on a reason that was not presented to the employee  the employer to rely on this an articulated reason even if it's a real reason you're so easily it's the hypothetical that it's not articulated even in a general sense is that your honor's question well we can make the bad sure ok if that's the case then then i think you could run into a problem but those aren't the facts here because it was articulated in a general sense and then was refined down and reduce a general it's just this reference to time cards and integrity but there isn't that there isn't any reference at all to the witness tampering that's correct there is not any reference to that in the in the statement itself and we take the position that the reference to the integrity policy of late was leader explained in the thirty six dollars constituted  statements and then after these statements were taken there was a further investigation in late may two thousand and fifteen where again all these five supervisors were asked about it they were consistent with what they had said earlier in the with time card preparation and adjustment and and the witnesses who testified about witness tampering also testified that time our preparation and adjustments so you really wouldn't be obvious that you're making that witnessed an argument as part of the basis for terminations would it well it may not be obvious to to say someone just reading the disciplinary notice without any context but i think the context here is important in the context includes the fact that this event at the forefront of u p s is investigation mr pie and i've been asked about it during the disciplinary meeting on july others who did this for the st time and disciplined as harshly as he was your honor i can answer that and the reason why is to to answer that we would need to know whether anyone else was actually similarly situated with respect to the specific time card violations both the cards and then the p t r s that's not clear from the record but more globally for anyone else to be cited in our briefing stand for the same proposition the need the same decision maker opposing counsel was asked at oral argument by judge shelby if she had any evidence that the same decision maker was involved she said no that's in the miss whole poem is held out to be a similarly situated compared her she would have to have violated work rules of comparable seriousness that comes from the kendrick case which would include influencing other people like mr pyne was found to have done here in fact that's what the district court seized on in large part in this decision said that there is no evidence that any of these compared including this whole film did engage in that type of witness tampering you know there's no evidence there's the same decision maker another issue is in order for anybody to be simul similarly situated they have to not be in mr pions protected class or put differently the claim here is that he was retaliated against for making complaints of discriminat hadn't taken a launch you had it into a time card but then she goes on and she says however the next morning then i would follow up and tell the supervisors to make sure that once was actually taken on so i think on that basis alone your honor she's comparable on the facts but  he agreed that given the fact that u p s could be exposed to a lot of bill the it would make sense to go forward and investigate regardless of whether this process had been corrected he said the same with respect to the fact that mr moore at the time it received conflicting but my point was during more he was over all you talked received a document which was a statement from sending holcomb admitting to exactly the problem that he determined with respect to the driver time moving the time over and that with respect to that issue mr pryor i didn't even get asked about it so i i submit that this the court should look at all the investigative records regarding these other people who were investigated for moving time over for the employees and the managers are always happy that they do it and when they deny doing it even when for instance is there something written down say a policy in the practice or is it's a it's a practice that and thirty six scholarly stripper testified to so the omission of any specifics seems intentional there are lots of