ortiz was issued about ten days into the my briefing in was issued about eighty five days before the district court opinion  however the district court opinion in its wording at page eight of its opinion sought to dwell direct on director circumstantial evidence of discrimination and provide a indirect evidence through the mcdonnell douglas frame to succeed under direct method must offer either direct evidence that would prove the question in fact without community hospital that mcdonnell douglas is not the only way to assess circumstances because it went on to state that the court will after looking up novel douglas the court will went to tucker versus t h c and what did i find these cases are both in late march of two thousand and seventeen macdonald of us is still valid but terminator employment because of her race that indicates to me when she look at the practical applications through ortiz haydn's smart talker and the other case i say that that in it you submitted both the brief and the statement of genuine issues right as right with specific citations to the evidence rebutting the and in fact undermining the rationales offered for mr mckinney's dismissal that's true and you were not not loss as to why the district judge said he was trying to search for nuggets or he was in supposed to root around for like a pig rooting around for facts because i followed the district rules and  those facts room feed in the statement for genuine disputes and they were also set forth in the break filed in the district court try asking about one of the specific facts here that i know you know because i'm still mulling over a little bit and that  is the evidence that sure hodges recommended to mr mckinney that he go see the movie forty two yes he did did you comment on the what do you think the significance of that is well the significance was he was basically telling well obviously as you well know from the briefing there had never been an african american hired we're going to shift work so apparently sheriff i just thought that since the jackie robinson it which is recently celebrated i think the seventy fifth year of it  he apparently wanted him to understand that there may be some kind of atmosphere negative atmosphere for an african american being in america be america troll and so  one sentence thing then the district judge said ok i accept that has been true yet i put in exhibits that think for example that the transport issue it baldly state the cha bawly states he never completed that transport that is absolutely not supported in the record exhibit one and two in his deposition show the completed transport record affidavit of mckinney correct in understanding your cases in essence that your evidence goes way beyond honest disagreement as right fact contradictions of earlier practices and assertions made your client about how he should perform ye stunned at the fact that we're not going to act as a super personnel department ok that's fine but if you look at dale which is the one nine hundred eighty six and i call it the bellwether case it kind of started this all and you look at the fourteen or fifteen cases that follow dale every one of them says that the whatever your criticism of the employee has to be factually based and you have to a believe that that is a failure to meet legitimate job expectations every one of those cases the employer has to honestly believe it now you may make mistakes and they use a lot of great language it could be foolish to be trivial it could be mistakenly held it could be poorly founded etc but you can't avoid the sheriff can't avoid the fact that his own s o p's don't support  and they only took false work hours gascon gasoline credit card and monthly report the monthly report there is no esle people that say how you turn a monthly report when you're at the union law enforcement ca well that's great as soon as he found out he used the term when he and i'm deputy sheriff gatton he turned to anyone with an hour now on the gasoline issue i we laid it out for four years you can't get the playing field and back and fuel up and told but in ten hours a day he talked to deputy sheriff again put in four days ten hours each that's what he did what's he do he gets that's one of the three criticism for him to be turned in the sheriff himself to expect that that was the way to do let's go to that point and this is america troll deputy all the officers except one that they said were disciplined were either cussed odile officers confinement officers or dispatch officers they are not merit patrol deputies they are not out on the road arresting people so if you look at a comparable issue they're not comparable from day one they're sitting around in the jail so that's the point there and i don't think it's relevant they also brought up a number of deputies that supposedly were fired in the that's the point you reached right there they're not comparable from the get go so there's no exhibits there's nothing supporting these one line statements from the sheriff that says mr mckinney failed to meet legitimate job expectations so no reason would jerk could miss the elephant in the room by language in there night maybe when some of the older language our opinion says that and we've you know it's pretty clear that that's something for the jury to yeah decide so the smart thing is if you don't hire mckenney you get sued for failure hire because of in any event i think quite frankly we've hit upon the major points i can't think of anything else between your questions and that shows ok thank you failed to prove intent to discriminate on the part of the sheriff the court did go through the mcdonnell douglas very almost the worst thing that mckinney one of the many things that we did was using his cell phone while driving us right i may  in motion use of cellular telephones while driving is permitted only when it can be done safely you can use it in lots of memory such as the plaintive testified he did was there any basis for saying that so the sheriff is saying somebody else told him that he was texting mckinney says no i was using it properly and legitimately right what rational basis to them to the sheriff have for saying there was a have in the affidavit in two thousand and nine i believe i mean i bet they would do it and the texting while driving was first raised in the litigation right now is not part of the sheriff's original letter terminating was may fifteenth or may nineteenth and i'm not quite sure that it's not in either one ok let's start with the two to answer judge posters question one of the worst things you don't he did i assume those would have been the misspoke that he would have had to use a gas credit card because he's going to plainfield right and it's more than a tank of gas and he's not supposed to take his gas tank down to zero and empty when he's driving in the county unit because he might be used only with the county commission that is a car when fueling at the county facility is not available now there's also evidence that other officers who went to the i only am plainfield charged used their credit and credit cards to charge gas in plainfield and thereabouts we've got evidence that a supervisor told mckinney when he went to the i only make sure you've got your car so you can buy gas and we've got evidence that would have been mathematically impossible how could the the sheriff would be pretty familiar with those facts the appellant didn't present any evidence of that to the district court or this any evidence of what of how the mileage it would take of the fact that he ran out of gas or was running out of gas  officer pardon he was a probationary officer in two thousand and nine the sheriff also fired a probationary caucasian officer for multiple violations saying the same here as we have a list of different things that are going wrong  said those included being late to work alone content contact between inmates and their families allows for a long time tech between inmates and their families and friends in court and speeding in a department vehicle without authorization great record or something that never learned sure i should have said it differently george washington you know the appellant hasn't provided any evidence that what the sheriff has said was a lie he's offered circumstantial evidence that it was utterly baseless in his already it has provided take his evidence at face value putting what he was told by other people in the department about using the gas credit card about filing his hours about filing monthly reports reading the standard operating procedures which do not say what the sheriff said surely the sheriff should know and your contention is it's unreasonable to even a wow an inference that not mean pretexts is for it to discrimination into ruining someone and so that is all the appellant has ever shown the district court or this court is his assertions of that's true he's shown the court no other testimony and i would distinguish or just hired him because he's the same person that fired him i understand there's case law out there saying that can be a question of fact there's also case law are finding that as a matter of law that you'll see case that why should it be wrong of the other why do you think that is a ma based on the e e o c case that we've cited that was held by this court well if you've got conflicting procedures how should we use on the merits why should this argument that it was the same person who made the decisions therefore he couldn't have been biased in the leader decision why why is that a red a rule of law as opposed to something to just argue to a dream under the circumstances because of the illogical nature of the fact that someone would hire especially in this case somebody would hire somebody and within nine months completely change their tune and decide to discriminate against them based on race are you familiar with the stray remarks yes whiny cases from our courts which i assume  e somebody and somebody might have said something racist a year earlier was not necessarily motivated by that same intimacy you know when they act the really you're right right they make any place there's no reason to do so if you have that bias against them the player certainly shown no reason for the sheriff to do that in this case  not just going to say one thing now there's the paucity of evidence was done by the sheriff there were no documents no exhibits no affidavit nothing other than the sheriff's affidavi mckinney presented this court with the affidavits the documents the actual transport orders the plainfield receipts etc thank you ok thank you very much