counsel we have a three count case here for you to promote suspension and termination and each of those counts today we do not have to prove all we have to show and all we did show is that there was enough evidence for these claims to go before a jury as to the failure to promote a leader wilson attempted to get promoted to the position of work leader position hardly held if at all for short periods of time by females and it's not that difficult the work leader position is not that difficult of a position to accomplish it simply supervising people who do what you do which she did and what her competitors did which was transporting patients it's that simple the reasoning given by the cleveland clinic is that is that jason petit his opinion lolita wilson was not the best qualified so the district court made a credibility determination  the only rational basis to make a decision like this i would say is if outside the subjective is to look at what's object of what's object of is that lolita wilson had four evalu to two thousand and eight two in two thousand and nine and one in two thousand and ten that either fully exceeded or meets expectations in addition there's this issue of trips per hour our position as to the trips per hour exhibits and they team through twenty two april through july show that little wilson exceeded the trips per hour of particular when she need to produce some sort of evidence regarding their qualifications and their evaluation and the extent to which they are you know some army situated two to her i know she has more years of service right and they do but there is not much else in the record that would compare her work experience with their experience unless you can point that to me if you think it's necessary no i don't think i don't think it's not that i don't want to answer your question or honor but i don't i don't think it's necessary because no criteria there were there was no testing for the position there was no objective criteria outlined for the position in addition lolita wilson at the time that she was exceeding to various tri brower was in the process of being fired for not having enough trips per hour endecott reversed that got reversed by claiming clinic's own internal write a review  allowed allowed her to do an internal appeal and as we all know that says quite a bit i think it says quite a bit because we're talking about the employer's internal decision making power typically about these man that would show they're not as qualified as she is six well here's the bottom line hers the bottom line on the suspension and then a i mean on the promotion you know i'd like to move out of the suspension and that is that  is the fore compare comparisons with the berry as to how fast she was able to get her work done but i am i correct that this that the work were calculated differently were not counted at all because they were in a in a dedicated area so i guess i wonder how how that that comparison works dispatch per hour this passes for your id and you're right your honor and in our position is we just mentioned that the the exhibit numbers the clinic itself did those comparisons despite the fact those those exhibits that i just the suspension the suspension involved a corpse involved early in brooks who was the lead and my client  who was not the lead the follower and they were supposed to move they didn't know who were the they were supposed to move they were patient transporters they got to the room and when they got to the room the lead transport admits she wasn't supposed to go in to go in t fired she filed a charge of discrimination and then i think it was about nine months later she she got suspended in connection with with this that's what this  right right it's really not only that but darlene brooks had never filed a charge of discrimination as head like claim and as such we can say that those two individuals retaliatory what did they do to brooks nothing they did they did they did they did they did nothing to brooks but when my client went into the room with brooks she car whatever it was one was on and one left and right yeah but there's no evidence that even if the nurse and darlene brooks and my client were all in the room that they could have stopped this three hundred fifty pound corpse sure but i'm rolling not rolling out of bed and i don't really still understand the district court's position that they'd that they both violated different policies and therefore one doesn't get understood i understand that i understand that but i did i disagree with it because there's nothing that links the policy of the clinic to what you just said you were there is that there's nothing that links them obviously of the classic that have somebody on the right why the deceased person still comes back right in and the other question is the policy as it relates to  i'm sorry the policy as it relates to  i need to move on to the to the terminations in a situation with the stints vegetal stance in a nutshell is he got thirty three seconds left in a nutshell my client came in the assistant nurse and she were moving the patient stephanie taylor testifies that they were making the move when she got there and was no damage there was no damage whatsoever to the patient ok thank you cal so you'll have your full revol to work leader position based upon her gender retaliation based upon miss wilson's three day suspension when a deceased patient crashed to the floor and retaliation based upon her term a nation when miss wilson disregarded the instructions of a nurse and moved a patient who had rods inserted in her vagina the district court evaluated all of these claims and construed the evidence in this wilson's favor and concluded that there was no material issue of genuine facts such that a jury trial would be warranted and in this case your honor the district court got this case entirely cracked i think it's best to discuss each situation or each allegation separately as mr newman has previously with this third one patients from one place to the other what the investigation from the cleveland clinic this discerned was that miss wilson was had become impatient as to the time lapse between when stephanie taylor the nurse had left and said don't move the patient i'm going to get somebody else that's what their investigation revealed as a result miss wilson became anxious and began to move the patient to clean clinics investigation to discovered that suzette a page the the personal care nursing assistant only assisted because miss wilson had already begun the lift and that was the distinction that was made and that's what the district court found as well there was no evidence that that did not in fact happen as to your first point i think that the question was concerning a policy the policy that i think the district court took issue with was that the patient transport or miss wilson in this particular instance disregarded the instruction from the nurse pointless or correct it's a four point lift versus a slide that what the nurse told her to do the nurse didn't tell it to do anything what the nurse told her said is don't do anything i'll be right back and during the cleveland clinic in this is what the district court found was is that miss wilson admitting that during the investigation she admitted that she was that she had become anxious that she pressured to make the lift and move on to the next assignment and that the nurse had told her not to do anything but she grew impatient because the time lapse that had occurred in a way have much to approximate fifteen minutes and that was what the district court found there is no evidence of any pretext because all of those things were based upon what the cleveland clinic had discerned as part of its investigation and as part of its honest good faith belief so whether it happened or didn't happen it's what the cleveland clinic believed at the time you're making reference to the investigation with that points that first the evidence of the record is she actually had entered into information in the system on the thirteenth first and secondarily that taylor had yes cracked and then secondarily your honor the fact that miss wilson had admitted what ha actually occurred during her own investigation and then subsequently mr taylor's recitation of facts which you're correct occurred on the sixteenth was entirely consistent with that which ms wilson had said during her own interview during the investigative process itself so there is no inference to be raised simply because the final paperwork for ms taylor actually happened after the term nation had a quote about missing pages report which is dated february sixteenth was just not taken into consideration as the thirteen so searching through the well pages was the thirteenth wilson's was before and taylor's was after on the sixteenth taylor sixteen so and both page and wilson's were entirely consistent with what happened as was miss taylor's miss taylor's was on the sixteenth and that's what the district court found what the district found is there's no inference to be gleaned even by virtue of the fact that the one was finished on the sixteenth simply because it matched that which was already admitted by miss wilson as well as what was set forth by susanna page the per that it was entered into a computer but then it was subsequently written down but it was entirely consistent the written down version was entirely consistent with the investigation of the cleveland clinic at the time and the question is you know and the case was very clear about this is that an investigation need not be report and then a written report later and it went into it the system effectively i mean days before you go on i believe one of thirteen which was the day of terminations as well but again they've already interviewed miss wilson who basically admitted the violation and a which is a personal care nursing assistant she was not involved in anyway she was not someone situated miss wilson she's basically like a nurse assistant so she was just simply there at the time at which miss wilson decided to unilaterally try to move and the patient as opposed to four point left to mr norman's point regardless of whether the patient suffered any harm or complained about anything is really immaterial because the issue is whether or not she disregarded the instruction of the of the of the nurse at the time a page was not was was because the miss wilson had admitted that she started the lift and therefore what are the slide actually and miss pages indicated during the investigation that because the slide had already begun she says she felt like there was nothing else to do but says she couldn't sort of have the slide begin but then not complete the slide if that makes sense and that was the differentiating factor between why miss paige wasn't disciplined as opposed to why miss wilson was discharged now if i may if i may turn back to the other portions of the argument with respect to the failure to promote what's important to remember is that miss wilson failed to establish the fourth prong of the prime the case and that is an individual similar qualifications was not a member of the protected class and the issue in that case was the similar qualifications and i think judge kohl as you pointed out the issue is the record is completely devoid of any criteria was well established and it was good work performance the ability to do a good job of fish and see good customer service and the willingness to go the extra mile and mr petty both at his deposition and reinforced by his affidavit suggested that both mr kno basically doesn't get there because she's unable to refute any of the rationale provided by the cleveland clinic as to why these individuals were better qualified than she was you know she tries to come up with a number of things but they don't get her there the one that she relies on most heavily is this fact that she simply had longer longevity in the position but as we all know someone with longer longevity doesn't mean they're more experienced in the position for which they're applying for a promotion and as a result as at least as it relates to the failure to promote the district work up this entirely correct that  there's no inference to be made and that she failed to make a kind of fish case and she also could not articulate any reason a pretext to suggest that the cleveland clinics reason was wrong or that it wasn't based on fact or that it shifted over time and cleveland clinic ever promoted a woman one of these jobs yes well yes and it should also be noted that there was a panel in on that panel were for women who were making the determinations about who were the appropriate work leaders but it's also important that the patient transporter positions by statistics there were one hundred twenty five men who happen to have a job and i believe there were only fifteen or so females so it's not unusual that one twenty people applied  that that was the result of what you might see but nevertheless miss wilson didn't provide any statistical evidence to suggest a pretext either there was no regression analysis there was no any type of statistics to suggest that something other than what was happening or shouldn't have happened by virtue of gender with respect and i don't i know i've only got a couple of minutes i do want to point out with respect to the suspension the issue in that case is and this is retaliation the e e o c charge was filed over seven months prior to the issue with regard to the suspension of mr near mint identifies there was a violation of policy both miss brooks and miss wilson entered the patient room without a nurse that was a violation of policy neither of them were disciplined for that the discipline came because miss brooks was the leader on the left and she told miss wilson to stay in the room when she then departed the room to say we need help because this body is too big miss wilson however decided to depart the room and i think judge seiler your point was instructive on this which was she said stay in the room and she left the room and it was only after she left the patient unintended did the three hundred fifty pound body crash to the floor and therefore there is no evidence whatsoever of any form of retaliation because remember the retaliation claim we have we go to a higher standard than we do based on the status based discrimination the nasser case which came about says that it must be but cars for zation in this case there's no evidence whatsoever that that that the fact that she filed a charge played any role with respect to her three day suspension relative to the patient drop this as happened  she charge seven over seven months over seven months rather and unless there are any other questions i will thank you very much for my time ok thank you thank you because wilson's actions were improper unsafe and violated the nurses instructions well no skilled admitted that when she walked into the patient's room that miss wilson and the nurse assistant had already started to move the patient that's in the record to twenty five dish eight pages twenty two and twenty three if that's the case if that's the case and they had already started to move the patient and there was no instruction from the nurse then what instruction was violated do you admit that the nurse to order to move the body till she got back or something like that no that's that's  clinic that wilson's actions were improper unsafe in violated the nurses instructions they didn't violate the nurse instructions and were they unsafe symphony teo the nurse testified that she did not say that miss that she testified she could not say miss wilson's actions injured the patient were unsafe cause the patient pain and she also testified that there was a special procedure for moving patients with st but didn't know what wilson knew about it and didn't tell wilson about it so in order to examine pretext here i believe we must examine the presence or absence of an applicable policy and if there is such a policy the purpose of the policy if there was made this is a patient who had gone through surgery and radiation and client is asked to move or and they don't tell her about the surgery they don't tell her about the read radiation they don't tell her about the stents there's no clinic policy that again she said when she walked into the patient's room miss wilson and the nurse assistant had already started to move the patient so imagine that you've got a nurse assistant and lolita wilson moving the patient you got the patient moved partially and now a nurse is going to communion say oh no put her back when she's already halfway into the movie itself i think we've got to go back and take a look at it why wouldn't the cleveland clinic with a patient like this why wouldn't they take a look at having a policy that would give special status to a patient like this have a special team move a patient like this and going back again i just have to reiterate the clinic says wilson's actions were improper and unsafe they were not safe those taylor admitted that there was no injury and she did know that there could have been because they didn't tell her and they let him go right after her the last case