eighteen fifty four eighty five james randi williams forces graphic packaging international arguments not to exceed fifteen minutes per side mr durham for the appellant thank you but please the court your honor my name is ryan durham along with cameron hall we represent the appellant in this matter i would like to reserve five minutes for rebuttal please with your honor's permission and i thank you for the accommodation i'll remain seated for my argument certainly thank you for that your honors the questions raised in this appeal are answered by the application of the proper summary judgment standard we submit to your honor's that the trial court applied an incorrect standard when ruling on the at bally's motion for summary judgment or the trial court reviewing a jury verdict to see if the evidence warranted the finding by the jury the may very well be appropriate however that's not what we're here on that's not what was before the trial court the trial court was viewing a motion for summary judgment where we submit there were numerous disputed facts submit that the trial court weighed the evidence ascertain issues of credibility and ultimately made a decision that was not supported by the summary judgment standard in the rule fifty six much like this court's case last year in hot stetler the trial court did not follow the proper standard and that's what brings us here today specifically our brief outlines numerous discrepancies that we believe the facts established that call into question the very credibility of the investigation upon which g p i graphic packaging seeks to rely and its germination of mr williams but those questions raise questions for the jury not for the trial court sitting in summary judgment fashion i would like to call your honor's attention to a few of those questions that we believe the facts raise for which g b i does not have a legitimate nondiscriminatory answer the first of those would be the performance reviews the record is clear that mr williams was subject of the subject of numerous performance reviews and each and every one of those reviews were positive each and every one of those reviews were broken into two categories one that you might think would be more along the lines of how well his his his floor was running how well they were doing with the business aspects the other part which was incredibly important to g p i as they testified was evaluating based upon the coup or principles or the the these core values that g p i put out for all of its employees to follow every one of those reviews illustrated that mr williams was what they call modeling or walking the talk good reviews in each one of those categories those core values for which they now say or have contended they terminated mr williams for interestingly as it relates to those performance reviews the h r manager mr flap when he was conducting his investigation or what he phrased as an investigation he emailed an h r superior one link up the chain from him to say oh by the way these performance reviews were below par or mr williams scored below par on his performance reviews not the case at all well let me ask you about a couple of the manager scott mantz on those reviews yes i understand the the writing numbers he wasn't at the top but he wasn't at the bottom either he was in the middle but i'm not seeing things with here's an example in your direct your direct reports say there's no need in disagreeing with you because you are always  told me you can't stand being wrong which validates your statements it's ok to be wrong let others be ride and then goes on with another example that you assume the worst because you read too much into what is said by a mayor others i realize you're working on this it's hard to hold people accountable in one time in a relationship but it can be done with the right approach and then  one here's a word of caution your associates know you don't want to be wrong and they know it hurts bad when you are wrong this least the perception at times if i can't express their ideas to you without being shot  on because you are always right would you say that that might not be quite up to par statements by management that since suggests that there is a communications problem with his employees those are certainly issues that have been raised in previous reviews your other there's no doubt about that if you look though at subsequent interviews including the one only two weeks before going out on family medical leave there were comments made by that same reviewer mr levy the plant manager who ultimately made the decision to terminate mr williams that it had been a great year in all respects except for those two injuries and there are other comments where mr lee says and i'm paraphrasing because the exact language will come to me at the moment but you're doing better working with other people so communicating appropriately and then he concedes that he had in his deposition i would suggest or i think that what he concedes in his deposition is that he had communication problems whether there were allegations made while he was out on leave or struggles that were brought to someone's attention while he was out on leave i believe that's a contest and something that the jury could weigh as in this or william's favor or as in graphics favor because the only allegations that supposedly came out while he was on leave were from the person who ultimately took his job or took the position that was vacated by his what eventually gentleman who said that he had hated to come to work for four years but he had to support his family that's what that was not  know but that was not made those were not allegations or information that was brought to anyone's attention we believe the facts show while mr williams was only or during the investigation that followed miss pa x the provision that miss pack of the information and her concerns they were absolutely employees who dealt differently and some bit perhaps offended by mr williams strictness but all of those employees also testified to the fact that his strictness was work related and that his criticism was warranted mr williams same the williams even testified that he knew it was all work related he took no offense by it and and the relationship was a positive point or one that was effective in the workplace will go quite as far as to say a positive one but when that was effective in the workplace his position was one that we believe the record establishes he came to the plant when it was in a bad way in certain respects and that it needed a mustering and he provided that mustering and that his strictness was a part of that we think that the performance reviews were i would suggest to your honor that the the grading is is such that if mr levy as the as the the person conducting the evaluation with since those subordinates oh along the way if he viewed them to be below par while he certainly wrote constructive criticism if he viewed them to be below par he would have scored them accordingly comments about interviewing he never interviewed he said he did in his report but later when asked his deposition he said i never interviewed anybody but then he goes on in the next sentence to say this is what i ask was also goes on in the next sentence to say this is what i asked it is true your honor that's clearly qualifies the you can interview somebody by asking one question that you know under some meaning of the time interview but it will i'm not seeing how that that was one that puzzled me in your argument it at first i thought oh there's a conflict in between those two statements but in context it's not really a conflict at all he just he just when he said oh i want to make clear that that it never happened and it was his own words in his deposition where he said i didn't interview anybody you're saying you have your bottle thank you got pretext graphic packaging made a reasonably informed and considered decision to terminate mr williams after an investigation revealed particular os facts that he violated the company's core  values plaintiff also fails to identify any similarly situated individuals who were treated more favorably in plaintiff does not put forth any credible evidence to establish that illegal discrimination was more likely the reason for his terminations in the reason is this court well knows there are three primary methods by which plaintiffs can establish pretax the first method is to show that the proffered reason has no basis in fact the second method is to show that the reason was insufficient to motivate the decision to terminate and the third method is to show that the proffered reason doesn't warrant or justified determination as far as the first method plaintiff has not put  forth any credible evidence to create an issue of fact to show that the proffered reason has no basis in fact because graphic packaging had an honest belief based on its investigation that mr williams only standard by which this court vee's those investigations is that they can't commit errors so egregious or so obvious that there's could not be an intentional we simply don't have that here your honor counsel let me tell you what the main concern i have with your present with your argument i'm not sure it's dispositive but it's the main one and then you see here it's a little bit suspicious on the surface that all of the complaints all coalesce at one point in time and that at that point in time he's just coming off of this extended leave all right so it looks a little if that's all you say and looks a little suspicious your answer to that and the company's answer to that is there's a reason for that and that is that that's when that was first drawn to their attention because of his leave and that that's certainly possible why isn't that a fundamental difference of a jury issue i mean it's just like well all of this happened at one time for this reason or it all happened at one time for this other reason that sounds like something we would give to a jury that's my question yes your honor stand your suspicions surrounding that set of facts but that doesn't really my suspicion it's whether there's sufficient evidence that no reasonable juror or whatever the standard is but there's no genuine issue of material fact with respect to the one narrative versus the other is two narratives basically write one narrative is all of the some when they did something that was protected all this stuff gets trotted out and the other narrative is it was all discovered at the last as a result of that absence all right i think it's not saying i'm suspicious i'm saying why isn't that present a factual issue or proof put forth that g p i had some discriminatory intent based upon either mr williams taking leave or his medical condition or something to that effect plaintiffs have put forth no proof beyond  the fact that they have issues with the investigation and i think as judge givens pointed out we consider those to be frankly nit picking semantical arguments but there's been no proof to suggest anything other than what actually happened which was mr williams erisa say it's not strong enough but there's a pretty strong inference that you might be able to draw from the timing i agree on happens and then all of a sudden they have all these problems with them but that doesn't create a material issue a fact that a lot of this is it your position and i mean i think it must be in the maps ition are in your shoes that are case law on the point of temporal proximity is sufficient to tell us that there is not a jury issue but rather can be resolved by the court by determining whether anything exists in addition campral proximity that's that's absolutely correct your honor there has to be more than to poor proximity in order to a stale sometimes sometimes temporal proximity is enough it is enough for a professor case that's correct but sometimes not helpful i mean we've sort of gone gotten it's like a good family anything you want to found in our case law but but i would say that is not sufficient but that temporal proximity plus an absence of well it's really never just camp or proximity it's temporal proximity plus whatever else you've got in the record exactly in all we have here you know if you had temporal proximity poss know what their possible reason that was based on evidence in the record maybe that's a jury question exactly so if you have temp or proximity without a legitimate nondiscriminatory reason alone that could create a factual issue here what happened was your honor is that mr williams goes out on leave and he had such a hold on these employees out of fear and intimidation they were scared to death to approach their superior with these complaints once m who put forth no proof to dispute that there have been he didn't testify and so he did not he has not contested the truth of the allegations against him there has been a virtually no proof that deposed he was your own it is the allegation he admitted much of the conduct for which he was terminated for instance he admitted that he told employees that he owned them he admitted that he  was not so much whether he did it as to whether it it was because he was a way that didn't occur to the company to act on  that's the argument that you have to understand that right if you don't accept that argument you kind of have a genuine issue material thing question is whether you accept that argument and i'm just wondering whether we have to say that there was no genuine issue of material fact as to that argument not  do these bad things are right that he admits he did a lot of those bad things are arguably inconsistent with the core things but i guess i guess i mean i understand your argument but it seems like at some point it's fact based and that's i guess we can look at his deposition well it's fact based your honor primarily because there are no there's no proof to dispute those facts well there are three ways to get there you can say pretext is because  in fact and i think the admissions in the deposition take care of by and the second one is you that it didn't actually motivate this action and the third one is it's insufficient to warrant the action it seems like one and three it was sufficient to warrant the action there isn't he isn't denying that he did those things so the real question is where a number to it did it did it it didn't actually motivate the action and your response in our correctly to that would be there are no similarly situated individuals who are treated more favorably typically have this core well that they point out that some of the very things he did other people did those also and were not disciplined they do your honor and we disagree with that well miss crack ms pacman spit spread this inappropriate to a direct subordinate as as mr williams did williams actually called miss pac to disclose the rumor to her under the auspices of what he should do he never once during that phone conversation did he not related to work by scott and it was not your own it was something that supposedly happened years ago he calls his direct subordinate to davos this rumor to her under the auspices of what should we do with this the way she took it  that she testified the way she took it was it was an attempt to spread the rumor to her to undermine the plant manager a lady and of course when mr lee finds out that mr williams had and rather then as the second in command right hand person of the plant manager rather than go to corporate human resources or someone else he calls his direct subordinate divulge as the rumor to her outside of work hours on the telephone but to answer your question judge branch the plaintiff has not put forth any similarly situated individuals both who have engaged in the same conduct or who have the same title role in the responsibility plain has put forth miss hunt and miss pac is similarly situated individuals and while they may have in it's disputed whether or not they engaged in the same conduct in terms of cheating on the safety exam as ms hunt or divulging the rumor to a subordinate as alleged done by ms pac none neither of them neither of them were accused of mistreating their subordinates by humiliation embarrassment and abusive conduct so they are not similarly situated because they simply did not engage in the same conduct with the same frequency and severity and as mr williams that would not sign that's right that's right and the other the other component of that analysis is of course that they have to have the same or similar title role and responsibilities one minute miss pac actually reported to mr williams miss hunt reported to a nother manager there only two managers in the plant their responsibilities differ greatly between with mr williams mr hahn miss hunt and miss pac were production supervisors they were over one aspect of the line they were essentially over a part of the production process mr williams was over an entire half of the plan many lines were within his authority so they are not similarly situated but for they may have been disputed may have engaged in some conduct that's not being that's not the only way you could show that something different to think of the action i don't understand your use in that it is the question is did did the value of the core values actually motivate the action and you're saying well these are not compare occurs but what i am asking you is there are situations in which there is evidence that the motivated motivated by something different when you really don't have a of the compare to compare to your strong evidence but so could some other statement the question is is there any dispute of material base their decision was more than reasonable and more than passes the muster that this court has set forth for such investigations again the investigation didn't have to be optimal it didn't have to be so comprehensive so as to leave no stone unturned and if you take plaintiff's argument that's essentially standard they're imposing it on g p s investigation it had to be perfect just reviewing their arguments in the semantical nit picking that they make with the investigation reports word choice in essence if you take their argument to its extreme any mistake they bought investigator for an employer could impute discriminatory intent and would undermine their honest it is very much in dispute we believe in the record that the actions or this strong hold that counsel says mr williams had over his subordinates was even there as your honor judge stretched mentioned earlier in your review of some of the comments in the reviews clearly subordinates were involved in the review process so when mr lee would conduct a review it included input from those subordinates and those reviews wow definitely saying what your honor said also included things like you make the effort to get the full story from others you have good progress in this area and that's related to holding people accountable i can see a difference in the way yeah there are some small differences there help you give me your best argument for why in light of what the plaintive has admitted his conduct is what he should best argument that that that there is a true dispute a fact as to whether the company was actually motivated by this i don't think it's accurate to say that he admitted to being overbearing or having a strong and well the about we've we've all read through  i mean i just think it would be it would be hard to quibble with when he has admitted i tell people you know you have the there's just a whole list of things that purportedly were unknown to the company so i'm just asking you give me your bash shot why is it that that honest belief is truly a disputed fact i think first your honor it is disputed the very essence of the stronghold i think it is i think that the honest belief requires that the the decision maker not know about the inherent problems with the investigation about how the investigation was created an established for the purpose of coming to the conclusion that mr lee wanted it to come to he was the decision maker he was involved in the investigation well and and i'm sorry but he's the guy that the rumor was about and if he had an honest belief that that was wholly inappropriate and he could not work with this man anymore that's different from discriminating against ng because of his medical problems so help me help make your case connection explain to me what data yes the rumor at least based upon the the deposition testimony from both mr lee and mr flat was that the rumor is what began was the impetus for looking into what was going on but by the time the investigation was over the rumor was the bottom of the page at the end of the investigation under way but really the rumor and its connection to mr williams is i think being overstated the rumor the record established well predated mr williams even being at the plant and it but but if you was far because of the rumor then you wouldn't have a just as was the so called manipulation and threats just as was the the cheating that in the report said happened numerous times a year and miss hahn the other in dispute asks over and over about his treatment over and over about his medication over and over about his family history that was all before he was granted right before the news the other information it was all before they were granted it before he was granted leave it was right up until the time of granting leave including mr levy saying things like your medication makes you quote paranoid as hale that's the connection then you couple that with the fact that he has a conversation with the other managers after mr williams is terminated and says now don't talk about this but this was not because of his health this was because of other job related activities we thank you very much like it's about with you for your argument and we'll consider the case carefully thank you out of the other cases being on the brief this morning