move to the th argument of the day mr sweeney whenever you're r please the court your honor so today i represent the plaintiffs in this case david mcdaniel mr mcdaniel was labor who brought an action against progress rail to defend it for court applied a what is essentially a mechanized or ritualistic analysis of the facts and law you know order to reach the conclusion that summary judgment should have been granted and whether he case which was the st time they were looking at whether or not the plaintiffs could show the demographic about employment force as evidence of discriminatory conduct the supreme court looked at the issue and said the method suggested a mcdon douglas was never intended to be rigid mechanized or ritualistic and allowed that evidence then to be used and it further allowed the defendant to pursue additional evidence which the district court and polk court thought should not be used in discrimination case this court has specifically come back since that time and acknowledged that employment discrimination may manifest itself in many different forms and this court has required district court to tailor the elements official case to fit the context of the unique situation it's just we need to agree dead in presenting your case that you need to provide evidence of similarly situated employees who were treated differently i think one must look at as this court said in crack to be a unique situation so yes i would say we would want to do that but once you are my question is a little bit different do you in order to succeed on your claim do you need to identify similarly situated employees who were treated differently so that pretty in the th element of the of the indirect method this court has specifically said so the answer is no i don't think so i think one must tailor be balance over prime fish a case to fit the context of the unique situation as this behind you get around that given our case law how do you get around proving that particular element given our case what is it actually use in the indirect method i think there's two things that work one i think we did i think we did sufficiently provide compared it's and that's a factual issue that i'll get to in a moment i'm just trying to understand legally where you're coming from if you think that is a necessary element which you've said no and now legally putting aside the facts but legally how do you get around our case law well let's assume that you've got a situation where you don't have a comparable does that mean that that person can't be discriminated against so in that case we're going to admit that the situation has to be tailored it has to be unique to that situation what about  situation let's say like this one where we've got an individual who is subjected over the course of forty five dollars days to incidents that are so off the chart terms of the conduct that one would normally expect in the workplace that you say ok is there anything other younger employee who was subjected to three c three separate false accusations of using his phone of claiming that he wasn't medically capable of going to work of them being sent out to sweep a factory floor for three weeks each of which was proven false so we've got a supervisor who comes in the day after he's accused of a action the next day accusing someone of using his phone now mr mr mcdaniels the labor doesn't have a computer he doesn't have a printer but he knew this was wrong so he goes to his cell phone carrier for two days until he can get his bill which shows his phone usage he brings that back to show his super supervisor supervisor that he wasn't using his phone on the day he was to keep they said he was on the phone talking to his son so he brings it in and show that to his supervisor who mr howard how do you explain this he says he wasn't using his phone and he's got proof that he didn't but he did admit that he had his pronoun on the machinery which was a violation of the policy whether he was using it or not a separate he did admit he had it and it was out on the machinery but but but that was not we're not saying here that the fact that you know he had the phone out doesn't justify someone saying something for a write up but that issue never got to the disc to the to the investigatory committee it never got to the disciplinary committee because they said the day after he made a just related allegation his boss comes and says you're on the phone with your son he comes in proves he wasn't on the phone with his son they say well maybe you were texting he says i wasn't used of text three days later he's accused of taking photos on the factory floor they come down right up behind him and say where you taking photos of the factory floor he says no get my phone not as productive as the other employees which is similar to the accusation that mr mcdaniel made originally saying that the younger employees are more productive than he was and they ordered an audit to see whether or not he's done as much work as the other plaintiff who violated the lifting restriction or some other serious safety rule that was treated better than mr mcdaniel so what we would say to that is we don't know but we protest the fact that there was a violation in the st place and we say you got to look at each one of these acts and context this is a mosaic you can't just say ok in august you complained of an age related comment in february you lifted something which physically a fifty six year old with a back problem leaning over a three foot crate to lift a one hundred and six pound greasy stainless steel locomotive gear so that he could pull a plastic bag out with his other hand that is not feasible i would challenge anyone who is the greatest athletes we have in the world to object that crashed his finger but did not repeatedly use the word lift himself to describe the incident and not just on the day the incident  mr mcdaniel did use the word lift we would suggest that when one is describes the situation as to what he did to lift a one hundred and six dollars pound stainless steel greased of gear inside the crate and then with the other arm pull out a plastic bag which was underneath it he didn't lift it he shifted but that's beside the point i think now  well i think it just inside the point is sadly whatever transpired there he left in the hospital use the word day use the word left in the depths he used that word i would suggest that even if he did use that word if we look at this at least let's look at it from the retaliation context we've got a supervisor who takes clear action against the plaintive for the forty five dollars days after this claim by the plaintiffs that he's not receiving overtime because he's older than his  the other members of his team and then when that supervisor is unsuccessful in getting him terminated he then uses that language as sort of a you know magic word which this this plaintiff in this case is not is not you would never say that mr mcdaniel is someone who uses his words  with an eye towards litigation but left is a take particularly sifts sophisticated bard and he said it in the context when he was being treated medically he said it he said it in the medical office where they had him in the office they would not send him to the hospital his finger was bleeding and he sitting there while the president of the factory comes out and starts asking him questions like is the ambulance here for an hour and a half he said in answer questions written records that mr mcdaniel received back in two thousand and nine but you're absent her client mr mcdaniel was he was he was able to present his case to the committee he in fact wasn't of the story jonathan howard asked questions jonathan howard conducted the investigatory interview broke down what questions he asked wrote down what he said the answers were and he conducted the disciplinary hearing which occurred i'm not i think i think our focus on the committee could do is make some sort of presentation through the investigatory interview with howard which then gets relayed to the safety committee but the safety committee what they looked at their policy says we will not look at a reprimand that's more than twenty four months old they looked at four reprimands that he received nine years ago and use those in addition to counseling which nobody knows about in august of two thousand and sixteen because he couldn't get out of his chair one day because  accurate i think it's hard to say because there is no no what's the record show what i mean it's not it's not a flu it's not a situation where you've got you know that's fifteen material handler mcdaniel pushing back on resistance that you're getting your here and some of the questions today you make the point that mr mcdaniel offered evidence of eight younger employees working in the same group same thing you know answer to the same decisions and none of them were subjected to anything close to the course of events that your client experienced that's on page forty of your brief the brief you make a similar comment on page thirty but it's unaccompanied by any specific references to the record so i don't know as i sit here today who are the eight employees what are their names what jobs did they have what did they experience so we're not going to find it in the briefs my question for you is is that in the record cite the court to page three of our brief where we say mcdaniel was hired by progress rail isn't as fifteen specialists materially but the same handler but material handler commonly referred to  and so what i was hoping to do is go from your brief into the record and read about the people so what we do go on say there is down below we lay out and this is taken directly from progress rules roles and responsibilities for material ramblers we list that information on page three he said to the record paragraph record forty five paragraph thirty three we then go on to say that mr howard was a direct supervisor of the team of nine total material and throughout the time when supervisor at the end was the oldest and most senior senior ritually in the working in the group the cases that the defendant has cited are cases where someone say like for instance one case where they say someone says i didn't get promoted and they lose thirty seven names of individuals they don't give what those people's positions were what are you back to your point that you don't need to identify comparatives this i think just scatters point as did you specifically identified these compared to the district court by name age job description supervisor or is there anything more than eight younger people specified in the record because i couldn't find that you know what we cited to and we would say that the the names are relevant the fact that there are nine material handlers in the group we lay out exactly what their roles responsibilities are but they are all supervised by mr howard and have been for a period of three years the fact that you don't know one's name is john oh i don't the plan of putting together a table listing thirty seven dollars people by name age responsibility does not list responsibility or i thought it just gave the names of thirty seven dollars people that did not receive promotions same way as a plank but what we're pointing out is it would be impossible for us to take a comparative and say ok you made an age related claim against your supervisor on day one this compared was not subject to a false allegation of phone usage on day two that compared it was not subject to a false allegation of phone usage on day five back computer in your times off we need to get to your your colleague on the other side but thank you very much may please the court plaintiff told progress rail that he manually lifted a piece of heavy equipment without dispute manual manually lifting a piece of heavy equipment violates the company's safety rooms and that's why he lost his job a plaintiff has alleged a different explanation for his terminations but allegations are not evidence and the key question before the court today is whether or not the plaintiff has any evidence to support his allegations that protected activity the safety committee cannot have been motivated to retaliate there's also no evidence that any one of the safety committee was age bias and as the district court strongly pointed out enough offered no evidence that the safety committee treated plaintiff differently and they treated anyone else who violated safety rules the other dance shows of the safety committee made its decision based on the plane as a violation of the lifting policy there is the on contradicted affidavit of the committee had mr ledger saying exactly that the committee had just written his mission to it he had lifted the heavy whitman the committee had plaintiff's admission to safety committee member tony wings who was also the plant manager and he was in no hurry and he lifted the equipment the notes of statements during his investigatory interviews are also consistent with the written admission and the safety committee knew that committee had mr ledger had previously counseled plaintiff about the lifting response plaintiff has four arguments in his brief st plane of says the safety committee was merely the cat's paw of his direct supervisor mr howard but the cat's paw theory only applies when the decision maker doesn't conduct its own investigation and it instead completely and blindly relies on a subordinate who has influenced the decision with false information there is none of that and set the safety committee to its own investigation of the safety committee reviewed the materials that had been gathered and they may have been gathered by mr howard but the point i think here is that the safety committee based its decision on the violation of the safety rules and it didn't need to look any further than pla admission that he had done that to the committee have for it anything other than what mr howard had compiled i don't know exactly the funnel to which it all got to the safety committee it might be that mr howard was the person who compiled it and put it together for them but i think the point is that he didn't there was no opportunity really for mr howard to have even influenced the decision this was in the subject of subjective evaluation of mr howard didn't witness the accident he simply took point of the written statement and moved from here to here and said here here's what he says himself mr the plaintiff himself said to one of the safety committee members mr wing's i was in a hurry and i lifted so there's really no opportunity here for it is true enough have an opportunity to tell the safety committee look this is all a sham this is all age related retaliation and let me tell you why i had a problem with the cell phone you know and this is all because i'm older now  have that chance there's no if he wanted to there's nothing in the record to suggest that he did and i'm not aware of whether the message allowed him to directly go forward i would say that he did grieve his terminations and in his  grievance he took issue as he did with the illinois department of insecurity didn't take issue with the notion that he had lifted he took notion with the fact that he had intended to do him any harm in other words he has told the same story consistently that he had lifted the material and it was on that basis that the safety committee decided in other words it's not mr howard the supervisor who got him fired it's his own words describing his own content his own conduct th fired and so the the other point being of course and that's the cats what they were but at the other point being of course that there's there's just no evidence that any other safety violation was treated any differently the plaintiff nd argument is to say i misspoke i didn't really mean it when i said that i lifted the chef but there's two problems with that argument one of which is that he confirmed the accuracy of the written statement that he gave this is the statement that his union rep wrote out for him and then he confirmed the deposition he confirmed the accuracy of and he also confirmed again under oath to the only way department of employment security that he lifted the shift because again he was in a hurry brought out represented that he lifted yes or is that the one where he said no he says he lifted ok if he says he lifted and i would also point out and this is i going to an earlier point that i think judge rather was making which was  frankly whether he actually lifted or not is somewhat beside the point in that's the information that he gave to the safety committee and if plaintiff misspoken gave them false information well that doesn't say anything about the motives of the safety committee who again had could never tell you because they didn't know about any age complaint and there's no evidence anybody there was age biased so the rd thing that he says that that the committee improperly considered these stale disciplinary ports plain has said that repeatedly but there's nothing in the record to say that the safety committee looked in any stale this marriage records i think mr ledgers affidavit is really the report of what the safety committee considered doesn't say anything about that it refers to counseling own rules of progressive discipline but the the very policy points to states right on its face that is that it may depending on the serious in the judgment of discretion of management it impose any sanction it wishes up to and including terminations there's no requirement that i go through five steps before to fire someone for serious safety violations plaintiff made a couple other claims to the district court i would like to touch on them briefly section nor did he stay with you in any way address progress rails authority on that point even if it was an adverse action you prevented you presented no evidence that the reason for the one day suspension was discrimination or retaliation he admitted in writing that he twice that he was violating the rules and he had gave two different explanations or both of which amounted to violations and in a written statement he said that he had been using the phone to check the time in the aisle that violates the rule he also had said that he had it out on top of his forklift which also violates the rule no evidence again that any similarly situated employees known to have engaged in a similar  violation but were treated more favorably the district court cited this court's opinion in johnson versus advocate health which under similar circs circumstances held that such an unsupported argument would be waived here the district court actually went on its own which it didn't have to do searching through the record looking for some evidence of similarly situated it found the reference to four employees two of whom were about the same age and although there was a reference in the deposition to two young using their cell phones in the plants that doesn't make them someone literally situated because there is no rule against just using your cell phone in the plan there was no there is no evidence that they use their cell phones in the plan in any manner that would have violated the rules or that came to the supervisor's attention over the overall claim that mr howard was out to get plaintiff due to his age also makes very little sense here in the sense that there's no dispute there's no similarly situated person treated any differently  there are these other material handlers coworkers of plaintiff who are about the same age no evidence they were treated badly and the claim again that mr howard was outside retaliate also doesn't make a lot of sense here and in the overall context of the record because there is no evidence that mr howard was ever aware of any age related protected activity the plaintive goes on and on about how he complained about over time allocation to miss to mr peterkin but there's no evidence linking that to mr howard who gave that the suspension for the self he plaintiff also complained about sweeping assignment included sweeping but he received exactly the same pay and benefits while assigned to his sweeping duties so plaintiff argues on appeal while he was humiliated by the sweeping duty that runs smack up into a problem for the plaintiff which is the eighty eight dollars does not authorize emotional distress damages including for humiliation so essentially that in and of itself would mean that there is no action cause for the sweeping duties again there's no identification of similarly situated employees and not only is there no evidence that it was motivated by age discrimination and retaliation to the contrary on page five of pointless reply brief plaintiff seems himself to attribute the sweeping assignment to an entirely different motive that has nothing to do with age he says this was mr howard punishing him essentially for showing him up well there's it's undisputed that that on those unusual forklift assignments that day were unusual for everyone so it's not age related and yet he's now attributed that as the motive for that assignment so on top of everything else that claims also failed again can't be retaliation again because there's no evidence showing that mr howard even knew of the age related protected activity and had pl conceded at the beginning of his argument he has not pursued it is workers compensation appeal and this court pardons workers compensation claim in this court and so progress rail would ask if they want if there are no other questions progress relit asked that the district court's order entered a summary judgment in favor of progress rail and against the plaintiff be affirmed in all aspects thank you thank you i'll give you i give you thirty seconds one point you want to end on or what thought you want to leave us with are under the forty's approach this court must take a look at and the district court must take a look at the overall context of the situation there is not supposed to be a mock ritualistic means by which we have to say ok in this situation you don't have this oh you can't pursue this claim when one does that doesn't break this up into compartmentalizes bend yet and say was that one part retaliation or not i think the court would find that this was actual you would ask that the district court's decision with respect to age from nation to nation do thank you very much thanks to both counsel cases submitted