one the district court improperly found that no genuine issue of material fact existed as to his failure to promote claim and the second reason that the district court failed to find that any genuine issue of material fact existed as to his retaliation and race discrimination claim this case involves your honour's a employment case whereby my client mr fuller an african american was employed by the appellee for seven years during that seven year time period he was subjected to several racial comments he was denied promotions and then he was alternately terminated  point the failure to promote claim the district court failed to take into consideration the conflicting the shifting and the false reasons as to why mr fuller was not selected for the position as this convened to interview that the candidates including mr fuller after the interviews were conducted to two individuals were recommended for the position but i'm i'm i right there were a number of candidates and then three were interviewed your man was one of the three and there were two jobs and so he did not he would that came in third there were a couple other interviews i believe so but yes he he was one of the one of two final candidates that were not selected as well so there were four four interviewers who was the fourth one i don't know the name right after you're just focusing on him compared to the two who did succeed ok the other two who are selected work ok that's right they were caucasian and is well as the interview panel was all caucasian and it's important to point out now the interview panel created a memo as to the reasons why the two candidates were selected over all the other candidates that memo gave the reasons that the money money handling interview in the customer service skills were the determining factors as to why the two caucasian employees were selected over mr fuller the african american we can s that those reasons are the true reasons the reason we can show that is when asked in deposition each individual panel member gave differing reasons one panel member janet brown couldn't articulate a reason as to why the other two candidates were selected other than to say they gave better interviews and this court has held that when we look at a subjective reason as to why  decision maker made a decision an employment decision we have to look at that with close scrutiny particularly when that individuals are not a minority which is the case here the other in her second interview panel member  mr steiner said money money handling which was referenced in the memo however the third panelist mr dan o'brien testified that the collins were that was the determining factor as to why mr fuller was off and that they need a replacement appellee needs a replacement to come in to fill a position they call individuals so it's not a situation where the employees calling in sick or saying they're not going to come into work well from those collins chart and very large amounts of the time they simply didn't reach them that's correct year and so maybe miller had better phones or whatever but miller clearly came in much much more often than either  your client i would agree with that your honor but it's also important to point out that my client was held to a higher standard and i say that because he was called substantially more than either of the two other or is there any evidence as to why that i mean sometimes it c good in the sense you want over time or you want to extra work were all of these people were part time at the relevant times they were all temporary workers all seeking the permanent this is a there's no deposition out there way about why was one person called more than another no ok i guess your point here what your summary exhibit shows that your client came in higher percentage of the time and little it was right so that proves that as for far is mr o'brien's reason as to why mr fuller wasn't selected is falls it's simply untrue there isn't it isn't it correct that your number that he came in more often is lumping zero nine and  twenty ten together if you only look at twenty two and look with came in more often yes i would agree with that and i would agree with that but then but it's important to point out that the memo makes no mention the memo which purports to give the reason as to why fuller was not selected the other two candidates were selected is doesn't make any mention of the calling rates memo talks about money handling money handling interview skills and customer service skills so and then the question about the the he gave a wrong answer that's just from the depositions that's from a deposition but also your honor that's a great point lights to the question of the interview skills but at least it's not in the  it's not in the memo but it's important because you know that came up after the fact after my client filed his complaint with the michigan department civil rights that was never mentioned especially it's been as it came up after w as that it came up after in a memo that was drafted but i mean he filed the complaint after the memo was really asked that's right that's right and you're asked about the money handling my correct there that there's there's no real dispute about the underlying number or that is that your man had a higher over or under the everybody's was quite low his was point one five point one zero point one one is that the reading that correctly i would i would agree with that your honor but again i don't believe that that's to dispositive of of this claim and i say that again because we here we have shifting and conflicting and false reasons as to why he was not selected it's very important going back to the interview question that w he purportedly answered wrong i mean that's we've proven that as being false because one of the interview panelists members dan o'brien said no he answered all the questions properly prove it's all that it may be shows that the jury questions wh client was barred their reason given was he was following fall from employment well you know that yeah it's true that he was found by the unemployment insurance agency to have committed fraud he disputes that he did that intentionally you know he's a believable guy but for purposes of this he we can show that to that is not there the real reason that motivated the terminations and the reason i can show that is this dean o'brien was found july fourteenth two thousand and eleven tiff committed fraud by the unemployment same thing nothing happens nothing happened until after my client's issue with the unemployment front came about so that shows disparate treatment ok but it's also further strengthened by the fact that the affidavit of might be a lot of former supervisor who in his affidavit says look they didn't they never investigated these claims for unemployment they never investigated them until until my client's unemployment fraud came in by far the white guy they fired the white guy to body we can we can show disparate treatment so we can show we can show that he was treated differently because like they fired your guy after a three week and they took what a couple of months with the other guy before simply but the argument your honor is that was had had my client's not been found to have committed unemployment fraud the white guy would still be working there you don't know that you're speculating well we can s because we have evidence to show that he was treated differently he was treated differently but it's not just that it's the affidavit it's the proximity in time with him making a complaint of of race discrimination we've got three complaints of resource criminalization within weeks of him being being terminated within were there any people earlier who had had these unemployment because these findings were not by the bridge authority right there b stand employment so were there people who had committed similar fraud you know where your earlier three is no evidence to that no ok so you've got at best you've got these several claims that happened all in the time in the same timeframe but it's also important to point out that janet browne the same individual that's on the interview panel that can't articulate a reason as to why my client was not selected she also had all the unemployment claims so i think that's important to show this is the same person who has this discriminatory animus based on the facts is also he had a ling the unemployment all of a sudden all of a sudden my client is are you claiming that she falsified something claiming she falsified anything but i think we can tie the two claims together him not really that as amongst the different people it sounded like it wasn't the she had discriminatory and of a she just had no memory of what she did or was it was very subjective and as i said you know when we when we look at a subjective decision maker basing their decision on subjective factors you know we have to look at it with closer scrutiny as this court is held and thank you you have your three minutes morning your honor is mike didn't versus an attorney general for the state of michigan representing the mackinaw bridge authority and employment discrimination laws like title seven or like michigan's counterpart the eliot larsen act i have one overriding theme and that's that employees in productive classes are treated the same as employees outside that class and that's exactly what happened here here three employees committed fraud and three employees were terminated for fraud and mr fuller was subjected to the same nondiscriminatory criteria in the m b a selection for a where there was approximately five weeks in between terminations for similar offenses and this is only a couple of weeks longer than that i would say i would submit that that's not a material difference and that gaffney controls here and even if this court found that this difference was outside of gaffney melissa brown was fired on a very similar timeframe to mr fuller that was before this lawsuit was filed so it can't be argued that this lawsuit motivated the n b a in that regard and what's the story with with brown i thought there was a longer period for my wrong on that i thought that the the fraud was in their different meaning when the fraud was committed and when the unemployment because of my right that that there's whenever the fraud then there's a finding by the unemployment commission and they transmit that to you is that is that the sequence that is correct judge boggs and if you look at record of entry thirty days three that is melissa brown's term notice of frog and it shows that it was issued on january eleventh two thousand and twelve she was filed she was fired later that month either did the notice of fraud is that something by you or by the unemployment commission that is something by the unemployment commission though so you say with regard to her it would have been just from january eleventh to january twenty third that correct twenty third or twenty fifth somewhere right around there your honor and i think the confusion is regard to dino bryan who's different from diana dino brian if there was two months between the unemployment commission finding and the firing yes approximately and again there is no reason there's no evidence in the record as to because of that delay and under michigan law you would have to show that it's a pretext plus standard as the mission supreme court is held in town and this court stated in hopson and there's no evidence that regardless of the reason that it was racially motivated to go talk about the promote lack of failing to promote mr for you know seems like there is some conflicting reasons given by with the same duties same qualifications so there is going to be some hair splitting between these candidates and michigan courts when you have similar qualifications michigan courts defer to the employer's business judgment and to say that interviewers that is far as he knew for answer all the interview questions correctly yet the other to say no that was one of the reasons we didn't like him because he did he missed one of the questions i don't believe that the mist question was not by any of the panel members or that was something by bob sweeney who was the administrator who didn't serve on the panel after the fact that it's never been our position in god it is just somebody right i mean if sweeney said that he had to have gotten it from one of the members of the panel i thought that was the testimony did i get that wrong that that is the testimony  and so the overall reason though is that mr fuller was not even that he was not it was not qualified but he wasn't the best candidate for the position and i don't think it's too hard to believe that different panel members could have different reasons for in their heads for reaching this final conclusion  e which means that somebody says as a matter of law no reasonable juror could possibly find that his promotion was based on this woman nation the question is can we really say that or is this a proper issue to go  it's not a proper issue for a jury because even if you take away the bill you may be conflicting testimony over whether in answer to question wrong there still be calling that other that what about the call in that i didn't in their exhibit showing that  the only fair reading of that testimony is he was talking to his personal experience when he called in individuals and you can take these cumulative statistics and stack assumption on assumption but others no evidence that mr o'brien was referring to these numbers  same with mr fuller's rather than yes if you look at two thousand and nine two thousand and ten in total and you refer to the percentages not the total number of incidents then you can perhaps conclude that mr fuller came in more but there's no evidence that that's what mr o'brien did and if you look at the example collins sheet that wasn't filled out by mr o'brien clearly there's other members at the national bridge authority that's allowed the sheets so just because if you sort of get this house of cards of well if you do inversely is there was there anything from your side in terms of you know who did the the calling and how it was done or you know why do you call it x rather than why is there any deposition testimony as to that you know that there is no there is not and then am i right that a lot of the questions of whether somebody came in or not was whether they were reached at all whether the phone answered on my right as your adversary said that these and a on the chart just means there was no answer when you called them that is plaintive chart but i believe that is what is being referred to because the in a is the is also on the example slip which they were presumably compiled from right directly so there's a slip when somebody makes that call there are a number of factors that could affect that who's working at the time these all had annual caps on the number of hours worked so it could be who had reached their hours already by that point i believe these were all very close in time to when the shift needed to be filled they were calling a week ahead of time so and as you noted it might be a benefit that you're called in more if you're given more opportunities to work if you're not if you didn't call him in at all we might have a different type of claim here i'm not aware that we have a claim of hostile work environment before some appeal here but just in terms of as a matter of evidence how to what extent can the environment the racial environment and all of this hostile derogatory racial statements be taken into account just as a matter of evidence and evaluate in this claim to promote and want terminations for that matter what was left alone that you know well it would be relevant if it was made by a decision maker and relevant to the employment decision at hand there's no evidence that this played any role in the decision to promote or not to promote others no evidence that either of the other panel members were well of course there's a lot more derogatory stuff than that we've seen in the word and  you know it's not completely clear of the extent to which management was aware of permitted but i mean i guess that could be in an open area of inquiry where this matter to go to trial that's why i was asking s where we have a if you're claiming employment discrimination and discriminatory intent and then the issue of motivation country and even if it's not a hostile work environment c can again if it's comments made by decision makers every time that mr fuller filed a complaint or notify management the complaint was investigated there was discipline handed out when appropriate there's certainly no evidence that bob swinney harbored any type of animists and he was the final decision maker for the germination claims and again and even if you there would be some question of fact as to mr o'brien's motivation based on this one statement that have that occurred at an unknown time  there's no evidence that either of the other two panel members had any type of improper motivation so even if you take away mr brown's vote they're still two votes who was the final decision maker on the promotion the panel recommended and bob so we need to review the recommendation but he didn't conduct any additional interviews he pretty much relied on the panels or we can tell that would be a fair reading of the evidence in going back to the promotion even if we there is still the money handling performance which is an objective standard which has been relied on the entire time of this litigation and prior to ever since the memorandum and that subject of mr fuller simply was not as qualified earth did not have as good of a record in money handling as the others too and because this is an no reasonable juror could find mr fuller was more qualified than either of these other two and because they would be even if they are considered equally qualified despite the various reasons given by the panel under test under the town vs michigan bell case the michigan supreme court with leave that to the visit to the business judgment of the n unless the jury believe that it was animated by discrimination if they were even the money handling is pretty you know if they had zero nine percent correct right and your client only had a ten percent of point zero one four and so mr fuller was the one below that threshold than the other two were above that threshold and that's never been challenged as an arbitrary threshold that's just their performance or any evidence on how generally the toll collectors do in other words other other other than just these three and what's the spread of how people do on the bridge i believe that the i mean for example is every employee who's full time stay under that threshold that would look one way as opposed to you know people are kind of all over the lot they don't get a real high but there are a fair range judge did know if there was any evidence on that i believe the best evidence would be the collector assessment report that record twenty six to which i believe list all the employees for that calendar year and i see my time's about up i'd like to mention that the title seven claims for termination retaliation were filed untimely because they were filed more i'd like to follow up on your questions regarding the racial comments that were made the n word what's up mr skinny black man which was made more than one occasion by a decision maker on the interview panel as well as comments about his skin color that is circumstantial evidence of discrimination and we can use that as showing pretext plus as counsel suggested for his termination claim so in reference to the gaffney case by mr denver this case is stronger because not only do we have that that time disparate time between that determination we have additional evidence we have these racial remarks these derogatory comments we also have the proximity in time in this court has held in mickey that protected activity plus adverse employment action that are near in time is evidence of discrimination so we can show that pretext loss that that's been referenced but in addition to that we also have the affidavit of might be law that says look the unemployment wasn't even investigated in the past so i think those factors together you say it wasn't even investigated in the past again this is coming from the unemployment commission was there something that the n b a reported owing unemployment i reference by that is what happens is that there's the state of michigan sends the reports to the n b a and the n b a is the one that investigates them so mr b lot of previous supervisor said they they would get those reports they would investigate them and i think that's clear by the situation with  also going to the business judgments as stated in wexler that's not an absolute defense combined with the other factors that we've previously discussed that the business judgment along with the discriminatory comments along with the the shifting reasons as to why he wasn't selected definitely showed discrimination took place so in closing your honour's this case is one that should have gone  to the jury there are just too many genuine issues of material fact it should have been left up to the fact finder to make a decision as to whether discrimination truly occurred whether retaliation truly occurred especially given that had three complaints were made within weeks of his term in a shed and i also want to correct one fact is in july of two thousand and eleven mr fuller which was weeks eight weeks before he was terminated approximately complain to a supervisor look these comments are being made if something's got to be done about this it stops there meaning it wasn't investigated so it's incorrect to say that all of his complaints were investigated because his july two thousand and eleven complaint was not investigated let me ask you this who were the decision makers who made racial or the decision makers who to investigate complaints about racial comments the only decision maker who made a racial remark which was the what's up mr skinny black man that was in burpee didley made when greeting mr fuller was dan o'brien and his decision related solely to the failure to promote his mr fuller supervisor mr steiner was not a dis was a decision maker on the promotion but the complaints came after the after the interviews so our position is look he mr fuller made a complaint in july of two thousand and eleven for these these complaints these derogatory complaints they have to stop instead of investigating nothing was done about it those were made but to me the complaints were made to ms brown