judge found that she did not meet her prime officious standard by establishing that she was either replaced during her thirty day suspension or that she had a male compare a tour who acted in subordinate who was not suspended with respect to the replacement issue as cited by the court on page ten of its opinion the replacement by his own testimony it was a male named mike ross a bitch he was the assistant director in his testimony in his deposition lines twelve through twenty three he testified that he received a telephone call from commissioner gentile immediately following the commissioner's determination to suspend miss gossip and in his testimony he stated that mr maple told him quote i'm the interim director or acting director and to get ahold of stacy there secretary and she will give you the commissioners e mail addresses and telephone numbers if you need any help with anything please get ahold of us the question followed he told you that you were the interim or acting director or that gentile the commissioner was going to be the acting director and he said mr ross of it a male he told me that i was so for the thirty day period the initial thirty day period that she was suspended although the court seemed to indicate the record did sustain or contain sufficient evidence to establish that there was a quote replacement as required by the mcdonnell douglas byrne shifting prime case standard it's right there the second  isn't sufficient no i think north her replacement being male it's good to judge her heinrich's question it's where's the discrimination the discrimination for me is that the trial court acknowledged that the reason for her suspension was unsubstantiated and false that if you read it doesn't mean it's based upon her sex though it does when you look at how a director who replaces her after she leaves does not actually follow the direct order given to the director and i ask you about that because i think when you parse it and i think it's important to break this down for us to think about it so to me there's two commands they think big gave they clearly didn't really give a command but they believe they did when they suspended their command number one is basically we're not going to do this exchange for services anymore and command number two is let's put this out for a bit ok they suspend her for in their mind not following command number one correct position yes yet they say we told you to do this you didn't do it when you go back and walk they might have missed that i think they mis remembered i think their records are pretty undisputed on that point but nonetheless they suspended her for that that saying by the time arrows vich or whatever got in place mir wasn't there anymore in exchange for services he was there sometimes the record seems to indicate because of quoting her bidding correct i don't think sometimes the record seems to indicate i think harassed if it's just testimony was that was who they used all the time but they were paying for the services ok so two different arrangements in arrangement that the city at least would think was acceptable or somewhat acceptable so the question is to me how you know the words if you're being told here's why we're suspending you there's no similar command to i can't i'm sorry i'm butchering his name in the record is there i believe that the command given to put the services out for public bidding so that it would be fair to the entire community is directed at the director and as part of the record oh mr ross of it was at the meeting at the time and was the assistant director when he becomes the director he's aware of the admonishment because she was suspended by the way do why i could treat the consequences for not doing x differently than the consequences for not doing y without it being indicator of anything other than i have a questions for one over the other i would agree if it were not a public i would agree if you were not using it to justify your behavior picking one that you believe to be lesser over the other when they're both public wonders to act pursuant to our direction so that the public isn't doesn't believe there's something  bad is not the word i want but underhanded if you will going on with this exchange of services and because of that particular element in this particular piece i think it colors everything because they were concerned allegedly given their statements in the public meeting with the public perception and if it's the public perception that from which you derive your concern choosing the flume or the buggering over the latter the public bidding which would expose to the public and humor your concern regardless of how it paid for because one can always credit it because now it's public i don't believe that using x over in the bit in the quote process well in this case there was one phone call not made well not one phone call o water services for multiple different jobs which by the way are encountered on a daily basis and you said in the other the other ones were quote not beds is that the idea the idea is not only that they were just folks that were given public advertisement public condi hither and give me your bidding quote for all our services and what's the evidence that the commission was made aware of this and didn't take action the evidence that the commission was made aware of this and doesn't didn't take action when i asked commissioner gentile during his deposition if like with miss gossip in in that secondary meeting he followed up to just months later after they not only voted to terminate or cut off all contact with their lawyer and stopped communicating with her that's the period of time i'm talking about because the public bidding process that was  undertaken in begun by miss gus been had not been completed and she was unable to complete it because in a letter written by the commissioners the lawyers who were assisting her with the public bidding process were unable to speak with her you say they action and it's an exhibit there's an action taken where they vote to terminate her that action was taken within weeks of her filing her ego c charge while they didn't end up terminating air because just weeks later she resigned because what do we find that the record say that there's a record evidence of it's there's an exhibit in the hold on there's an exhibit in the definite deposition of the commissioner's maple gentile ok what is the document the document is an action by the commissioners that was the title the action by the commissioner yes i believe so so it's a record of a public meeting it's the you know it's the minutes it is no it is an it's action by commissioners they met in private there was no formal meeting and there was only two commissioners present and who who are thought ok did this document commissioner graham and commissioner know i don't have it with me i don't use it in the record it is in the record it's attached to the exhibit or we'll take a look at it in the depositions o this action that apparently did a private without telling anybody which would be violation of public meetings and everything else how does that impact your constructive discharge coley i believe it establishes that her belief that she was about to be terminated was true she believed that she could no longer communicate with the lawyers that letter is also in the record from commissioner gentile to tony pechor tool saying you are no longer to have any contact with shannon guys when the director of water and sewer and do not tell her i said that so that's in the record they cut off contact with a legal council so she couldn't perform certain duties including grants public bidding she was unable to communicate with the commissioners themselves and she believed she had a bone leaf that they were going to fire her so that would be a such situation that at all reasonable persons would find to be intolerable to continue their employment that it's an intolerable situation that they have no alternative but i have to believe yes i believe she couldn't even study like they're  impediments to her efficient discharge of her job but i'm not sure what you've said would cause reasonable persons to say that i must acquit because the conditions of my employment her so all well your honor just months prior to that in august she'd been publicly reprimanded and suspended for thirty days she had also received information from other individuals who had spoken to her which is in her deposition intolerable working conditions that i mean it is it's such a level that you know really a reasonable person could not continue the job and here i mean she has problems but i just i don't think i've ever seen a constructive discharge case to be this week that's all why i think that the reason that we believe it to be constructive discharge is that by her testimony she couldn't complete her job and  care that's basis we still have the suspension climb of yes absolutely i believe that even if we say that constructive discharge is not sufficient you have a thirty day suspension claim but i suppose the evidence on that is a little bit different because you're you're limited to the time of the suspension all right you have no direct evidence of sex discrimination the circumstantial evidence you have is the hearsay statement that the and they are said one of the commissioners expressed treated much differently than the male who took over her job i mean in every aspect for control over hiring and firing two she was constantly repudiated in her evaluations for using engineers to complete a mere bit of projects and by definition he has no engineering degree and he does the same even though he has no projects a word after the engineer to do the work because he hasn't had any and he's not even and there's not one iota of that's that's wrong so there's none of that he has free and open discussion with a lawyer that is not banned those products occur after she thirty day suspension the proof is in the burden shifting is that she was replaced by a male and the reason for her terminations is already acknowledged by the court below was false there was he said there was no evidence the legitimate business justification isn't there but we still have to find correct that a similarly situated male was treated differently i don't believe so if she was replaced for those if you have a thirty day way that way and if you're suspended for the wrong reason and your replacements a male that doesn't automatically make it gender discrimination they have to there has to be evidence in the record from which a reasonable jury could conclude that a male who did the same thing would have been treated differently and i think your argument on that is look at his after the fact all the evidence you just listed plus the fact that the bidding process baby and punish him for doing the same thing she  good morning good morning your honour's please the court my name is molly quinn i am counsel for the app to leave the jefferson county commissioners and i wish to address the reasons the district court correctly granted summary judgment for the athlete first to start i think th correctly indicated that the adverse employment action here is the thirty day suspension and i think that even concluding as the district court did the thirty day suspension was perhaps undeserved the plaintiff has still failed to establish a prime a fashion case because she has failed to indicate a male who either did not follow a directive or committed other contact that could be console rossa village didn't follow a directive because the same directive existed that they want to put out to bid and it's i think least three possibly four quotes for the process no guru those are different than i do agree with that your honor yes but the differentiating factor we would submit is that no one is permitted to dump sewage at the county  contracted with for the purposes of cleaning out the the live stations and performing it extra so if you look at what the commissioner said it both meetings they were upset that this was no bid out and maple makes that explicit he says we have two things basically we have to get done we have to terminate and we have to put it to me this time a weird agreement and we have to put it out for a bit and he doesn't differentiate between the significance of those it's clear the commissioners thought that the right way to do it was to bid it out and yet when she didn't do want to half of that she got suspended when erosive bitch didn't do the other half of that there was no consequence why isn't that evidence that a reasonable jury could find its discriminatory well we would submit that ero not directed to do that it was shannon costin it was directed to that in the meeting minutes from the june thirteenth two thousand and thirteen meeting in the record indicate that shannon do agree it was the person in the position so he assumed the position when she was suspended he was at the meeting because he has he says in the record cost two hundred fifty thousand to get a truck and after that when he takes over he similarly doesn't do it and that's undisputed and yet there's no consequence for that  well we would submit that he took it certainly a step further than she did he obtain three estimates which she did not do he ceased with the unlimited sewage disposal that miller had at the plant and miller was paid that met the quotes indicated that miller came in low they were eighty dollars lower than the last quote again that's the erosive it's deposition at record twenty seven that's eleven ninety seven is the page miller came in lower miller was selected to clean out the grease traps to clean out the septic tanks for the county and no haulers were permitted to the facility and i will submit your honour's that this does require some pursing of the record but to explain this arrangement which i think will help the court understand why there is a differential the original agreement was that miller was informally permitted evidence in the record reflects that there was no evidence that any of the three prior directors were aware of this this was joe syracuse sa knows prior to any event she didn't set it up absolutely your honor that is correct  there was an info strange whereby they were permitted to dump for free and in exchange for that they provided the county was services in the form of cleaning out live stations that required cleaning and use of the vacuum truck mr rose a bitch testified the vacuum truck cleans out the stations more efficiently the county did have a jet or that was able to do those things as well that's again in mr ross his deposition when the services were terminated no septic collars were allowed to dump at the county that is  deposition testimony record twenty seven miller is now paid based on the obtain all of the estimates absolutely are honour's correct this was not formally competitively bid we would submit that was not required under ohio law sure that the record is correct that shannon understood that based on her communications with mr cora you'll note that she and it reached out to him and asked him to retrofit an exchange of services agreement and it was not until after she was reprimanded at the aug sixteenth meeting some two months after that she obtained permission from counsel to continue with the informal arrangement so miss caused an statement that she understood that she was perm she was supposed to submit that that still does not reach the issue of gender discrimination because at this point is it is undisputed that the informal services arrangement that the commissioners were concerned with has stopped you have a situation here where the primary concern was that this was an agreement that these commissioners would not do and none of these commissioners were aware of this practice and that's undisputed in the record commissioner gentile's affidavit establishes that the testimony of dave maple in the record at twenty constructive discharge claim as the supporters aware this requires working conditions that are so intolerable that a reasonable person would feel compelled to agree that they were going to terminate or i do not agree with that statement or are misc osmund did not become aware like to clarify this the documents in the record are informal performance evaluations that the commissioners did and consolidated for purposes of one recommendation while it is undisputed that two commissioners did was after her e e o c charge so no it was after i thought she was promoted before i'm sorry but i thought she was promoted before she got suspended that's correct  that's no i do not agree that the commissioners wish to terminate her her terminations was never put to a vote and she was given some critical performance evaluations based on this document posing counsel referred to in the deposition it's a ok is that after the suspension before it is after the suspension your honor yes but she's not advised of it she's not advised of the performance evaluation she did not learn of these because she was presented with one holistic evaluation rather than the three individual ones that they did about her she did not become aware of those recommendations until after discovery in the lawsuit so there is one overall evaluation she gets and she she's given there within each of the three commissioners do a separate warm and that's through the separate one you find out the two of the three thought that she ought to be discharged that's her act so i know that she did not become aware of that document until after discovery all right since testified that he felt the channel was micromanaged but he had no evidence that that was based on her gender and that is that record twenty six page id ten sixty four the record also reflects that after making director i believe that the vote was unanimous sure on or i will be honest i stand here i'm not certain i did interview for the position but i believe he voted to make her the director following that and again that is that i have a record site for after the discovery same as the recommendation for terminations and we just met that that this is a case where mr oxman has failed to identify a similarly situated male colleague who was subject to adverse employment action based on failure to follow a directive while we would concede that the services were not without the why wasn't the directive to the commissioner to the position rather than the person in other words no matter who holds this position we want two things done we want the exchange breman eliminated and the big this put out to bits and rest of it didn't follow that he took over the position so why doesn't that show it i'm not sure when viewed in the light most favorable to the point  calling that's correct the state statute doesn't require the services given their amount to be put is that matter if the commissioners do in other words at the commissioners i don't know you can tell me but the commissioners say we want to bid it seems to me the directive is go get a bit i'm i think that the the the commissioner's concern was very correctly that this was an informal agreement this was an unwritten contract that they had no approval and it was in exchange for services and airco there was a situation where parties were benefiting and there was no way to quantify it and this process needs to be formalized because we don't do things this way we're a board that does things by the book and while i would absolutely agree with your honor the the competitive bid statute was not followed here you've still got a situation that is markedly different the what miss causton was doing and did not cease doing even after two months and allegedly contacting legal counsel in obtaining an understand that i understand that and the statement was too to put it to put it out to be and this is not the way the sport does things yes it could be clearer but i think that mr  wash doesn't say anything about getting it she then follows up with him over a month later on july twenty sixth two thousand and thirteen that's at record eight hundred four page eighty five sixty five she asked mr couper at that point if they can retrofit an exchange of services agreement nothing to do with putting it out spit retrofit a document create a public record that doesn't exist already and her exact words are retrofit in exchange of services agreement just until we formerly go out bit or whatever the commissioners want to do because subsequently informs her three days later on july twenty ninth that they have no obligation to create a document if one doesn't exist nothing else happens no further contact with tony  says that they can again this is eight hundred four page eighty five seventy one so the allegation that she obtained some kind of assurance from counsel which she was unauthorized to contact never approved formally through the commissioner's attorney client privilege doesn't attach and i would just