hold on just one second let your adversary get seated security officer you know that was called to perform a police act you know putting a patient in restraint counsel what you call the incident report how does that differ from its exhibit twenty one document twenty seven twenty two that is sometimes referred to as an incident report this is the june sixteenth those two nurses that's bought and most bottom up and there were complaining about the conduct of the security officer it had nothing to do with the treatment of the patient zero any medical no investigation the court relied on the interview report the report of interviews conducted at of the two nurses but i'm up on august first that's one month whatever where would i find that in the record i feel david i don't have it before me right now so i think your time's expired unless the other judges have any questions you'll have your five minutes for  made please the court brought some behalf of st joseph mercy oakland hospital in four of the five individual defendants i believe we advised the court one of the defendants named in the complaint was not served that would be marked by the plaintiff has alleged five counts age race  discrimination under title seven and two state law tort claims interference with contractual relations and intentional infliction of emotional distress to lower court correctly held the plaintiff could neither establish a prime official case of age she would not have been terminated i asked plaintiff in her deposition what are evidence of age discrimination was she had any evidence of a predisposition or bias or motivation to discriminate on the basis of age she had not the only evidence she could come up with was a rumor which she described as hearsay that she'd heard two years earlier from the name person that she heard the hospital was going to get rid of older workers this had nothing to do with the terminations it wasn't made by a decision maker it was clear hearsay as the pla workers the hospital came forward with evidence that a younger white male was terminated for a single event of abandoning his post plaintiff received lesser discipline for the same event she got a final written warning another younger white me and got a final written warning for being in his post same as plaintiff so there was evidence of favorable evidence of comparable treatment pointed pointed to not but to your to your honor's point the district court really based its holding on the fact the plaintiff had no evidence of discrimination to establish pretext she could neither show any intentional discrimination any predisposition to discriminate on the basis on the part of the decision makers or any evidence of this similar inappropriate treatment the plaintiff also could not overcome the good fight believe dr which this court is it here to win the seeger vs cincinnati bell case i was here a year ago with judge clay just in versus advantage health here the hospital conducted investigation they had witnesses to the plaintiff's misconduct both the misconduct that led up to her discharge where she was placed on a final written warning the two incidence and plato's conduct at the time of her discharge in those two facts here one we had reasonable credible evidence particularized facts upon which the hospital relied and made a reasoned decision and secondly even here today plaintiff does not the matter of the essential conduct with which she was charged point of does not deny that she questioned the patient plaintive does not deny that she did not obey the nurse's orders to place restraints on the patient plaintiff does not deny that she gave advice to the patient terminated which he's satisfied to that she was replaced by younger worker which he has satisfied three that she was qualified for the job which we say based on her own admissions she was not based on her own bit of kind of  don't think the peril of the employee of thought she was quite often qualified for the position they maintained in the position so i think she meets that criteria in play i don't dispute there are some some differing opinions out of this court about quality about the qualifications the it is whether you have to meet the minimum qualifications which she did at paper or whether you need to meet the employer's expectations which we submit she did not so there are two lines of law that on the qualifications standard finally the prime that they should case requires a showing of dissimilar treatment such that it would give rise to an inference of discrimination and we submit she has not shown that with respect to the disagreement potentially about what happened in the emergency room your adversary said that she indicated that she had in fact helped with the restraints what's your understanding on that he indicated that this was something from a affidavit yes what's your understanding of the record because he didn't have a citation heard him say that and i didn't have time to to pull the the documents so this is my memory and i apologize for that my memory is that her deposition she didn't recall whether she assisted with the restraint the witnesses said she did not and i believe in their affidavit she did say and i'd have to check it to be to be certain that she did say in her affidavit had heard her deposition that she assisted hold that's all along after the event so all along not something in the record where she tells the hospital hey wait a minute i really did this no she did this is either from a deposition or an affidavit both of which are a litigation has begun is that your understanding that's my recollection so if we want to find this we would look for it in a deposition and a post deposition affidavit is that right from your point of view racked their affidavit accompanied to their response to my what would you say that well we didn't use the report there is a section in mr hernandez's contemporaneous investigation that reflects a summary of what in your smoke reported yes what the summary came from was of information from the report and no nobody can check to see if you accurately extracting information from the report because you want to blame if i see the report so you're actually using the reporter information from the report putting it into a summary and refusing to disclose the report itself and the district judge says that's ok and i'm having trouble figuring out why that's not of discretion well you're ours right is to the standard is an abuse of discretion standard the summary is not to the report and i understand that the court may have a quibble with that distinction but it is a distinction as more than one well it's not the report in the peer review system is set up this nurse utilized the peer system all caps p s p e r s to report the near miss and a patient safety issue that privilege about investigating near near misses and patient safety incidents occurring on his premises without with regard to the quote summary of the pirs report help me here because you said which is what i thought that we're referring to hernandez's report which begins with five lines four and a half lines that may be from the peers report is that the summary we're talking about correct and because everything else that can hernandez's report i didn't see any other part of it that might have come from the piers report is that accurate that's accurate every others witness was interviewed separately signed as the only part that's quote the summary of the pirs report is the four and a half lines on the first page of hernandez's report and to be frank with the court i've never seen the peers report has never been  disclosed to me what hernandez testified to is that he spoke with nurse both on the phone following her utilization of the peer system so this is first though does that mean on that day or approximately that day before the pl terminated he testified ok do you have a cite for that because i tried to find that in what was in the exhibit twenty five hernandez deposition and i did not find it so in other places what you have a page idea  two one six eight now the pages you're giving is deposition pages yes ok do you have a page i d record reference i do not because this issue was never report no information i don't believe so your honor i'm not looking at that but the only place that comes up is what hernandez type this judge boxset about five lines one more thing than the hernandez report which does have all the stuff in it when was that actually created because it includes a reference to the mocha interview of august one which implies that it would have been created after august one right he he spoke with her again he spoke with her immediately after the incident that's on page one dated june sixteenth that's what started this whole investigation and then he spoke to her again during the grievance procedure ok but you didn't answer my question is are the documents that we have the document twenty seven dash twenty two that document would have been created after august  what mr in its full and in its full glory here's mr hernandez testimony point quote it was a word document it was running file and we would go back and add to it it was kept on my computer is there a is there a statement or testimony by the decision makers as to how much of it or what they had before them at the time of making the decision yes mr hernandez said he had  spoken to bought it but hernandez isn't the decision maker that's what i'm saying is what the decision makers see the decision makers were the supervisors casm or in williams they received from hernande his summary of interviews and there's some handwritten in other statements you'll see mr williams sent a question to mr quality and mr sikorski they both supplied responses within a day or two in june  statements that hernandez is referring to and they had some earlier version of hernandez's report because the one that is in the record wasn't created completely until after august one is that fair it's fair ok just a quick question why is there anything in the record as to why the union dropped its grievance yes and i don't have a record cite but it's in the briefs there's a letter from the union attorney saying they did not find the grievance to have merit so they did not proceed with the wrongful discharge or just cause grievance proceeding or a legal thing if again well i think it's legal significance in corroborating evidence that the hospital found in good faith particularized facts upon which it based its decision but it did to be to be frank with the court no it doesn't undercut a claim of discrimination by itself  proceeding but my understanding is no it did not happen if anything it was simply these five lines from her name his report so if the judge said that these six excerpts were good were given he would be mistaken that's what you're saying i believe so and you base that on one based on the fact that i've dealt with this hospital for many years and they do not let me even see their peer review reporting system you have a didn't tell us whether down council think your time's expired unless my colleague requests a thank you council the case will be submitted in the clerk make all the remaining cases