please the court kathleen delaney i represent bikie barbera who was for twenty seven years an excellent employee of pearson in twenty thirteen pearson began to exit from its textbook print business which by february of the second b s p was supposed to be the last chance for employees to voluntarily exit with severance pay before pearson shuttered this business unit but after the twenty fourteen b s p closed and after pearson issued a request for proposal to donnelly outsource its print business only four employees asked to leave with severance those three men and one woman were all in eligible for severance at that time because they were voluntarily resigning the company paid the three men but didn't pay the one woman this court should allow a jury to decide whether pearson discriminated against ms barbera by denying her the same so called special treatment that the company willingly gave her three male compared the very first time say and talk about how the district court said that they weren't valid compared because they saw the severance pay before the donnelley transaction and your client was much later in the game well all for all three men and asked after the request for proposal had already gone out to donnelly point one point t the district court erroneous leeway that compared her evidence to find as a matter of law that her compared her group where the seven hundred people who stayed until the last day as opposed to the three who asked earlier to leave voluntarily and get severance under coleman versus donahoe whether a compared her is similarly situated is usually a question for the jury to decide and the only issue on summary judgment was whether we could provide enough evidence that a jury could reasonably find that the four of the group of four were similarly situated and we believe we did that through the affidavits of the three male compared who voluntarily stepped up and helped their former colleague establish that she was that's in the debbie freeman human resources affidavit that and it's also in the defendant police brief that's undisputed there are only four people who asked to leave voluntarily and get severance pay after the second voluntary program had closed three men one woman was in also true that your client was the only one who did not accept employment or or i believe that the defendant alleged that in their papers i don't i didn't have a way to independently verify that so each of these four individuals asked to voluntarily leave after pearson had started the migration from print to digital in two thousand and thirteen after the tw thirteen voluntary program had closed after the two thousand and fourteen voluntary program had closed and after the outsourcing request for proposal had been issued to our donnelly so we believe that a jury could reasonably find that the three men who got special treatment were any different from the one woman who was denied that same special treatment additionally the district court improperly held our client to a burden of proving by a preponderance of the evidence standard on a summary judgment motion that's unpaid on page twenty two of the just reports order and that application of the clearly wrong legal standard alone constitutes reversible error that should allow us remain and for a jury to decide this case if an employer takes an action against one employee in a protected class but not another outside of the class and all other things are equal between them the court can infer discrimination at least provision narrowly at the prima facia stage of the analysis and we see this case as the miller to the humphreys case which involved a managers at cracker barrel cracker barrel restaurants race discrimination a african american manager had left a safe unlocked at night time and then cocky and got fired for it a caucasian manager left a safe unlocked during the daytime and didn't get f and this this court in that case found that that difference of only a half a day twelve hours in the day was not enough to just differentiate between those two people they were both similarly situated here we have a difference the print business so we believe that's enough for the for us to get to a jury on these facts all four of these people were ineligible under the language of the plan at the time that they asked for severance how many people february of two thousand and sixteen there were a total of nine hundred almost nine hundred jobs lost one hundred eighty who went voluntarily and then the seven hundred who were gone when pearson handed the keys over to donnelly and brute well her department wasn't eligible for the first p s p and then there was an issue about whether her department was included in the second b s p and she testified that at no time did anyone say to her you have a chance to go or if you want an informal v s p will help you leave and stead she testified that she asked three different people three different times months before the donnelly transaction w employees at large and each time she was given the runaround or told to go talk to someone else told ask someone else but not told yes you can do what these three men did and then when she finally sent an email asking for the same treatment the answer from print and to digital this was completely foreseeable and in fact two of the three men were still getting their incremental severance payments within days and weeks of the public announcement of the outsourcing deal i'd like to reserve the rest  for her which is understandable but when she finally decided that she was ready to go the opportunity for her to leave with severance was no longer available because pearson was no longer looking for budget cuts it had made the points to it some context is helpful here in twenty thirteen through early twenty fifteen pearson was dealing with the various struggling aspects of its business its an educational company its core business for many many years of course had been tax bucks but people simply aren't buying textbooks as much as they used to go and pearson was in the midst of of transitioning its business model to  digital media as part of that they were looking for various cost cutting measures that included everything from voluntary severance programs to after being employees no longer looking for budget cuts within its own built in the because it had made the decision to transfer and outsource to our donnelly by her own testimony mrs barbera admitted that she did not start asking about leaving pari time with severance until late twenty fifteen and her formal request was actually not made until january twelfth on or around january twelfth twenty six scene while miss m identified any true compared her is because there is no on the record evidence that no other person employee who was similarly affected by they are donnelly transaction requested and received severance rather all other affected jury could conclude that she asked around the same time with the man and i just want to clarify that the record is absolutely clear her own deposition tazza mony is that she did not ask in april twenty fifth teen when one of the laugh she did not ask in june twenty fifth scene when one of her other comparatives laughed rather she didn't ask about severance and salt poured in her own testimony some time late and twenty fifteen and by the time she had started asking about leaving with severance the world had changed at pearson the company which had been in the midst of these major cost cutting initiatives was no longer looking to do that rather it was in the i think it would be characterized as a as a sale of a portion of the business  s you can imagine at the time of an outsourcing many employees may not wish to transfer to a new employer many people might prefer to leave without but the policy pearson severance policy reasonably precludes that so that the deal can be successful simply put at pearson and our john really needed the seven hundred employees that were working in the warehouse of them working on the print side of the business to continue to carry out the work that our donnelly was now taking over pearson one thess route instead of closing different sites the work at those facilities was continuing critically none of the has anything to do with sex discrimination the record out on is that ms barbara was a longstanding and frankly highly valued employee there's absolutely no evidence on this record of any kind of animus on the basis of saks with respect to the district court's legal analysis she found that there were there were two critical variable area school district is a severance case and it does both of the glee identify timing and the policies that are in place that time as key variables to look at with respect to who was comparable and who was not employee to him pearson offered severance after september of two thousand and fifteen when she became aware of the transaction and then there is in fact no one who requested and received severance at that time pearson's severance policy which specifically includes the mergers and acquisitions clause that reference a severance not being available to any employee if there is a transaction with another company where the employee will then be offered pre employment is another independent reason as to why the comparison of those barbara points to are not in fact comparable because their jobs are not subject to being rebadged and could say they were counting on her because they talk to her about being talented in certain areas nice sumant are done with is assuming we transfer whatever you're calling that they it's it's your turn key diminished operations at least we understand correction or nato that so that package of people that went with the transition was moved was a operational business and she was part of  was not time because they'd already talked about transferring everything else it does mean she was forced to go but yes she did and she quit but at least any that at least some distinction as severance the company was in the process of migrating its workforce it wasn't looking for a project that it was attempting to deliver its workforce that he well so that the business could continue and just briefly if i could touch on the as she was told by mr nathan's on according to her testimony that she was too late for the two thousand and fourteen v f p it was also true as she was told by senior counsel for pearson when her counsel reached out and made a request for severance that she on page nine of our brief it was in the fall that she started asking three people and kept getting told no talk to this person talk to that person she was forced to make a formal request which came january twel the men were never forced to make a formal request they never had to ask more than one time and they left when they were ready to go because they each already had a job to go to so they could have the opportunity to do a job search find a new job then ask hey can i get severance and go bollen terribly and they were all told yes you may yes you may yes you may when she tries to do the same thing within a few months she's told no you may not and there is no evidence that she was a key employee or that her not showing up would have anything to do with the transaction closing employees were not told about the outsourcing until january sixteen she had already asked three or four times before that date march and april of two thousand and fifteen the last one to go was in june but at the relevant point is the request not the departure date so when was the last request i think it was april that it might not have been the guy who was the last to leave i think that w i believe that's correct yes so from twenty thirteen to twenty sixteen pearson was gradually shedding nine hundred people only four of those people asked to resign and get severance outside of the deadlines for voluntary incentive plans three men got a yes one woman got a no and when she talked to the h r director about the two she knew of ms freeman says there's a third but don't tell them i told you we have contradictory reasons for mr nathan son and mr lennon that's all we need for pretext this is a classic gender discrimination case and the idea that they have to all leave on the same day to be treated the same that's not the way the comparative analysis works a jury could just as easily say the relevant period is that three years that nine hundred people think you can fly over time but cases taken