good morning your honor please the court my name is richard salzman i represent they call your honor's this was a typical employment discrimination case that should have been left for a jury to resolve each side had a story to tell backed by competent evidence on the plaintiff side on january th two thousand and thirteen fake call lodged a formal complaint of discrimination with the family dollars headquarters the complaint was sent to the district manager marshall walker and the next day january th walker and the store manager tiffany thompson met with cole to talk about her complaint ms call alleged that she had been receiving discriminatory comments by thompson and that her hours had been reassigned to a younger recently hired employee marsha walker chastise miss call for complaining saying you shouldn't make allegations like that about your boss and twelve days later miss walker and thompson fired all the explanation for firing miss hole was absences the records provided by family dollar show that in firing this call over two alleged absences absences which she disputed family dollar treated miss cole differently and far worse than several younger employees  no call no show right where it's different from an excuse an excuse to say you call but you weren't given permission had a time where in the record or is it in the record can i find whether these other folks were no call no show absences vs an excused absences is that do you understand my question i do your honor and it's hard to find and the answer is because  family dollar provided us records showing the dates of absences and several employees had back to back absences and the store manager miss thompson testified that she couldn't remember the circumstances of any of the absences for the other employees records we have don't they just don't indicate if they're now they don't answer that question or what they do answer though is that there were man absences unexcused absences employees who were clearly similarly situated which is really the key question as this court asked in laying in the fed ex case are the employees similarly situated here  worked in the same store under the same district manager and same store manager at the same time as phone call under the same rules attendance rules and no call no show necessary to show that they are similarly situated it's probably different to the manager whether you just don't show up to work or whether you call and say i'm sick today and i could be able to come is that an essential ingredient and i don't think it's an essential ingredient your honor because family dollar only came up with the no call no show explanation that particular spin on the explanation very late in the day in the litigation in front of the unexcused absences well we've introduced evidence that there were employees in the same store who had more than forty on excused absences and fifteen under tiffany thompson and forty eight dollars under marshall walker and nothing happened to them so you're right that there's just simply not evidence in the record because tiffany thompson said i don't remember any of the circumstances of any of these people but on this record a jury could find that it's only after a missed call complaints about age discrimination that these managers care at all about attendance corning to their our own thirty b sex designee there's not a memorandum of counseling there's not a notation in the record of any employee at the store of any concerns about attendance including miss cole including this call until after she complains about age discrimination twelve days before she's fire and we're not saying obviously that a jury would have to draw the inference that that was retaliatory or age discriminatory but only the jury can the ha that inference there's some disagreement about the number of absences and the one of the but the question i have is what you're being very selective and overlooking the fact that there were employees fired for absenteeism in the year that thompson spent as manager of the capitol heights store that now were under the age of forty and three including miss khowar over the age of four so there are a lot of a lot of people are going to this whole question of comparative those there are a lot of people under the age of forty that up all employed in this particular store and found that thompson had fired younger workers with fewer absence well i was and other words you may disagree about the firings and everything but how does it all add up ages give him a factor younger workers are being was highly disputed so that the the entirety of the of the record evidence that judges ynys relied upon was an affidavit by this nearly who is a human resources vice president who had no personal knowledge about any of the circumstances at the store and did not produce or point to any of the records about these younger supposedly younger of absences she does not provide the ages family dollar back in two thousand and thirteen told the e e o c and this is at page eight hundred and fifty one of the appendix that they had fired four employees at the store not twelve tiffany thompson when asked in her deposition how many employees at that store she had fired for absenteeism one fake call she said that she had fired four employees or been the entirety of her career and family dollar over many stores so the evidence that the district court relied upon to say that oh they fire many twelve younger employees is thoroughly disputed and is in the entirety of that evidence came from nat and meet natalie milly's declaration what makes this age is to keep pieces of information testimony from miss cole about the statements that tiffany thompson was making to her which under this court's authority should be considered as direct miss thompson said to her within weeks of the time of the firing that she wanted to get rid of any cold bring that raise that in her age or complaint initially well again that was only complaining about the fact that they'd been giving her hours to a younger employee and then they fired her and the charge got amended to include ads of firing ages because she never raised it up for your honor that goes to the credibility and that was a perfectly fine argument for them to make to a jury trial but her testimony under oath that these statements were made is competent evidence and she told branch bank or a branch of lowe's department store or when these restaurant or whatever and particularly a store like family dollar which depends branch already or a particular store particular unit it can tear it apart and put you of self in the shoes of a middle manager who are let's say a branch department of love and all of a sudden someone without calling doesn't shut it just gets the day off to a terrible start and if you leave the problem unaddressed what happen is the absenteeism become the morale of the place suffers and says  ruins a middle managers life and it can also you know turn of the business depending on have on him and your you have to have something to bring when we do we do your honor so the question of whether she was scheduled is highly disputed and the record support our client not there where in the record  notes but was both consistently testified that the practice was that the schedule was posted on thursday the thursday before and then our eyes at twenty seven  on thursdays if she was scheduled on a thursday she would pick it up on thursday i'm that records that i maybe let me now on your i will i will thank you so but in any event the the records show that she was not scheduled for either the th or the th now the audit report shows that miss thompson on the th two days after their meeting to talk about the complain of discrimination adds those shifts but miss thompson agrees she didn't call or tell and those shifts because at that meeting she ms kohl was complaining that her hours for being reduced that may well though they gave her more hours in still complaining well your honor it's not that she's complaining about getting the more hours she's complaining about being fired in her  and you know the problem may be greater or lesser but the thought that she that she wasn't creating problems with no call no shows is hard to believe when you look at this record as a whole when you have a very good district can't deal with that and branch branch managers can't you know can't deal with that and that's it's just hard to believe looking at this oh that there's an issue of tribal fact as to ages when you have a manager retaining older workers and dismissing younger that's not what the record shows respectfully your honor the record shows that the three that the three employees that miss did fire for absenteeism miss call a gentleman who's remissions r w b and a woman whose initials are c d d i believe we're all either fifty or over fifty or very close to fifty and in a circumstance in which she is not firing many younger employees who racked up forty or more or absences hired lots of younger employee that is disputed your honor all the facts in your sad our own dispute i know i'm not contending that there are dispute that our point is that the very fact that they are disputed means that this case should have been resolved by injury please the court denise toronto on behalf of family dollar stores of maryland who are referred to as family dollar your honor judge wilkinson you hit the nail on the head family dollar terminated missed call after she made it clear that she could not be bothered to show up to work during pretextual judge see nice properly granted summary judgment in this case i'd like to touch on mr salzman discussion of the schedule of st judge rushing asked where on the record was it that miss call received it on a thursday it's not in the record what the record shows is that the schedule that mrs cole allegedly received was a draft schedule that had somehow been printed on finalize from a manager grand conspiracy theory that mrs cole was somehow scheduled for january th january th and it's a post hoc explanation as to why the family dollar terminated her the fact remains that judge factor as you recognize she complained until january th she was then scheduled for twenty one hours that week she was given more hours but she just didn't potter to show up she works january th two thousand and thirteen she got the schedule she knew the schedule she knew she was supposed to be there january th she would have seen the schedule on january th showing her scheduled for january th and th family dollar miss townsend had a good faith belief that she was scheduled tory high volume sales we really can't say that this person was hired to replace somebody else it's very yes it was yes and we don't really hire someone to replace someone it's a very  busy time and we in and out with employees to be honest mr salzman also raise the issue of the e e o c position statements and that mr thompson you know family dollars reasoning is somehow shifting balkans and noted miss thompson has never changed her testimony the positions team in your honors was written by someone in the legal department we lying on papers mr thompson was unavailable to consult with miss walker was unavailable to consult with it was written by someone on the legal staff mr johnson's testimony as to this issue has never wavered she missed call was terminated for not showing up not calling anyone and even on january th one missed when miss t called miss call to see if she would be reporting to work and also mentioned the january th date it's called and called back and it's just all concerns you say that this wasn't her st time she was ever absent she was absent for no call no show december th when she said she was it was actually due to hosting a new year's eve party for her colleagues who will attend and again touch welcomes and as you also noted earlier this was not just for absences set those aside she also had absences do give the benefit of the entrances to the non prevailing party but when you're reviewing a grant summary judgment it's also fair it district judge just brushed the case off or whether the district judge was conscientiously dealt with it and really understood the record got it and it was a judge then it's it seemed to me that she had affidavit on the surface she didn't look at the records she cited to names she took and look at every absence and you're honest i'd also like to address mr solomon's briefing of the direct evidence in this case this especially in this case again as we all discussed that on january judge factor you noted this on january th january th hours increased twenty one hours were assigned right after the term a write off right after that meeting week's shifts i believe miss cult has to fight i did not find the exact site but that she normally would pick up her schedule on thursday she also would go to the saturday morning  correct they were pled specifically in her complaint in this court and she wrote a letter to the e e o c in early two thousand and fourteen and that's it and seventy five of the appendix in which she says when she called human resources at headquarters to talk about her concerns she talked about she called about the cut in hours and harassment harassment for lay person who was not represented at the u c at the time certainly is involves these types of statements her testimony that they occurred is perfectly competent evidence whether it's corroborated or not and i disagree judge wilkinson with your view of what her daughter testified to her daughter testified that miss call told her that she was you know these that this is the kind of treatment that i get from her all the time it's thompson and her daughter was there for one particular incident in which her daughter said that they were making nasty derogatory comments about my mom but she could not remember precisely what was said it's honest testimony but it is corroborative both with respect to the way that they were treating her mother and the fact that her mother reported to her at draaga tare comments about her mom and that her mother had told her about you know the the poor treatment that she was receiving from miss thompson and the fact that miss call testified about the comments more hours she was given more hours she was brought back on the job after an hour after a month's absence due to some record illness and  the worst kept of no shows which is a no call because it deprives the middle manager and the manager of the store the ability to to om to to make substitute short handed and the day just goes downhill from there and that's what is so deep a troubling at the heart of his case and this is in the face of giving her the additional  mis way is just it just isn't it isn't it just doesn't sit well i understand that your honor i would say however that with respect to the no call no show that requires that she knew about those hours and the testimony from miss thompson is that she added the hours on january th and did not she saved the actual paper copies of the jewels that she saved at the time for the week of december rd december th january st and the disputed week they all have that save button at the top they all are in the same same format which supports her contention that the schedule that she picked up at the store at the time did not have her working on the in the night appreciate the time