terminated from his employment with fifth third bank the allegation was that determination was based on a violation of title seven title seven of the civil rights act of nine hundred sixty four and the ohio revised code forty one twelve i would like to reserve three minutes of my time for both your honor we are here to ask the court to reverse the grant of summary judgment and remand this case back to district court for a hearing argument and for the request is that there were several genuine issues in dispute when the amp's summary judgment was was awar  they argue that mr weak could not prove that he was treated differently from any other employee too they argued that mr we could similarly situated and who is it that you think would be a comparable person to the district court wrongfully ignored your honor i'm giving you a few more facts that would probably clear this up in your question  situated was based on the fact that they argued that they were not insane one of the arguments was that they they were not in similar positions they argued that mr we was actually an actually still were similar to the duties of a payment processor because he was actually just reviewing the work of the pay payer per payment processors although he was not a and the kid and the similar they were they were similar in the position was similar to the duties were a bit different it's similar to having someone working at a post office and the clerk treated similarly for similar conduct that's what we're that's correct if if we had two people come in here and start fighting we would want to see correlation is not necessary so there was not a need for there to be a direct correlation in the duties what they should have been looking at is not only  for the same supervisor in the same section so the only distinguishing factor that the court found was that they said that that that mr we now performing the duties of an auditor  that the court took it upon itself to resolve on its own as opposed to looking for corroborating evidence there was for instant one of the reasons that was cited for mr being terminated was also the fact that they said that he made a veiled threat so that was one of the different factors that they stated distinguished him from m and mr weeks prior supervisor it who was also in the meeting when that occurred did also state that the statement was made however he also s didn't see it as a veiled threat because he knows mr we and he he thought that when he made the statement he was going to bring in all of the evidence that he could he kept papers on everything that happened and he was just going to show with those papers the reason that becomes a pretext is the fact that miss healy basically said that m up when he testified at his deposition he was not a participant in that decision so that was another inconsistency but also it's interesting that if this was such a was treated differently during his interview he was interrogated as opposed to he wasn't asked what happened on the other hand when you look at the compare tour the compare tour actually did testify that he was asked to explain what happened and then he was told that he did nothing wrong he was also told to go home and come back whereas mr we was told to go home and they would call they would call him and let him know when he could come back after they conducted an investigation that was another distinguishing factor the but it clearly there were different standards that were applied in the treatment of mr we and and his compare a tour and what's really really important is to know that  mr hatfield does did testify that he actually told them about that when he interviewed the first time and he subsequently he was terminated  for that action but it was after mr we filed his complaint mister so the fact that mr have was eventually terminated might suggest that when the employer learned about have fields behavior then the employer treats the two of them similarly yes your honor that is what the employer would like us for us to remember the bank it is yes this is bank a bank really was just reacting to the charge that was filed by your client to rectify the feel you're to have fired was towed he did nothing wrong thank you profession case specifically that he is similarly situated to brad have filled in all relevant respects which is a standard required by this court the reason why brad half ill and mr we are not similarly situated are three reasons number one we have filled immediately had different job duties number two we was the initial aggressor of the dispute and number three we made bail friends and acted aggressively during the investigation which is something that i have failed didn't do so i want to talk about those three specifically the first one being the job duties wheats own testimony conclusively establishes that as of august seventeenth two thousand and nine he no longer acted as a payment processor he was not or why does that make a difference great question your honor the reason why that makes a difference is because it was this difference in job duties that actually started the dispute as a payment processor your job is to actually reconcile the checks for fifty or its customers with their account and then scan the mail them back as the au or your job is to check the work of the payment processor the very reason why curtis we initiated the dispute with happy old is because he thought that hatfill was upset about his audit of his work so to say now the difference in job duties is not relevant makes no sense because that was the initial thing the start of the dispute we testify conclusively that he saw hatfill go over to that workstation and pick up his badges he's claims that have film made a face and he assumed that the reason why the negative face was because he wasn't please what we thought of his work supposed hypothetically the star about some silly thing that has nothing to do with their job like whether they're putting their trash in their trash can you know something that's totally a personal kind of thing would then the difference in job duties be relevant well it would depend that would change the nature of the fact that we have  about here i'm not saying that it has to be an exact correlation what i'm arguing is that the urge of its case says it has to be similarly situated in all relevant respects which means the aspects of the employment that are relevant must be nearly identical in the earth of each case this court held they were similarly situated because there was a reduction in force and they were both h r managers in the same department they got reduced in this situation i'm arguing they're not similarly situated because the conduct was different the difference in job duties is what caused the dispute and his behavior doing the investigation cannot go unrecognized during investigation wheats own testimony established that he was outrageous doing investigation specifically he threw his badge across the table and resigned he refused to answer questions he admitted in his deposition testimony that he talked over the h r manager when she was trying to talk to him have fielder not do any of those things during the investigation in addition there was the argument a great question in order to survive summary judgment he has to produce evidence and he has mere speculation about how he thinks the interview with healing in half or when he was not there and he has not produced a deposition or affidavit from anybody that was in the room when he really did her investigation w to actually show the court that he was treated differently the only evidence in a record establishes that he only asked the same questions of mr wheat that she asked of mr hatfield the only difference being that we testified he refused to ask her quite answer her questions because he himself determined that they were irrelevant he was angry and he was really non responsive there is no evidence in the record to show that healy acted differently in investigation with we vs having worked depositions taken about what happened  taken and a deposition of mia healing the e r manager that made the decision was taken and they both testified in this case ms healey conducted the investigation of we and have feel the same and he has we has produced no evidence in response to summary judgment to the contrary with that the two people that were involved don't agree so thus it was saying that this of this related factual matter nor your honor we does agree that he was the initial aggressor he testified that he started the argument by walking up to terms of who was the aggressor well your honor in love this court held that it doesn't matter what happens after you start the argument the issue is who started it and everything else that occurs after it is a continuation and in this case you a words again talking hypothetically if you have two coworkers and one of them starts verbal leave an argument that's different than if one of them starts punching whe you're out of the court this court didn't hold and love versus can't in that situation all the plaintiff did was get out the car and start the verbal argument and then he was assaulted by bigelow and in this case this court held love never would have suffered his insult if he had not backed up his truck to begin a confrontation with bigelow to begin with so i argue that this case is exactly analogous to the situations happening here in this case we initiated a verbal argument and according to his testimony only he's claiming that hatfill hit him which is precedent that's already been set and a precedent by similar cases in the other federal courts the deal with similarly situated based on dissimilar conduct that we have not established a prophesy case in addition he's failed to establish pretext in a situation he has not produced any evidence to establish pretext which according to this court requires one at least three things number one that mia heelys decision was not based in fact he's put forth no evidence that number two that the reason that she set for for the term an asian then actually motivate her decision he hasn't put forth any evidence to either or number three that the conduct was insufficient to warrant terminations he hasn't put forth any evidence to that either as the district court pointed out he was fired because his conduct in employment was outrageous excuse my language he repeatedly yelled and called mr half a bitch over and over and over again during the investigation he threw his badge across the room when asked whether or not even engage in some of the conduct in a future he said he would do everything exactly the same he never got a supervisor involved to avoid the dispute he made veiled threats that monday was going to assume that it means that at the end of the day the issue here is whether or not this third media heelys interpretation of what he meant does she have a good faith belief that that's what he meant and she didn't she testify that when he said monday was going to be a big day that she took that to mean that it was a threat to other employees you know we're running into these disputes of fact here there was somebody else who said to her i don't really think that was a threat is his supervisor didn't think it was a threat he was not the decision maker up i'm not talking about who made the decision i'm talking about a dispute a fact over for example whether it was reasonable to think it was a threat when somebody saying to or notis this man pretty well now that wasn't your i don't think that any of those things are in dispute he completely testified that he was acting exclusively as an auditor so i don't see a genuine issue of material fact concerning whether he was not in our opinion process throughout i don't know if i agree with you that job title is germane to whether they were  conceded that he was the aggressor i don't see where have to consider that he was the aggressor at all ya know where's that coming from well i can't point to it because i don't have the record open in front of me but i have notes indicating that hatfill said no i was but i thought that what happened was the initial disagreement subsided and then have t right yes you're wrong so it's not a binding precedent and so we need to we need to figure out what should happen in this kind of circumstance yes your honor but there are other cases from other federal courts like the polls we want our case we're both situated and so fifth third position is that had i'm sorry really different cave somebody touches somebody to start a disagreement that's a physical touch whereas here you were saying the disagreement started because of words that we  missing from just seems that those are two very different kind of situations i think they're different in a sense that you're right one started with words one started with with physical but i don't really feel like that difference is material oh let me ask you this if after and at field had words and we pulled back and went back to his desk if hatfield hadn't then approached him we wouldn't be here today isn't that right no i don't agree with that but i like we had options so when half approached him after he got the soda and came back and said you have a problem with me we could've got up and when i got a supervisor he didn't have to stand up put his fingers in his face and call men to little bitch repeatedly which after have subsequently approached it occurred in nice subsequent altercation but let's be clear during the first alter cation before half it walked away and came back telling him we was unprofessional doing that first alter cation would have fired we for that yes because he was so loud and half it was so loud that jason curves had to be called by sammy dolly so come to see what happened it just so i'd like to just clear up a few things mr hatfield did in fact testify that he was the aggressor for the second ensign in the end and first incident started with words it did not hatfield went two weeks desk stood over him and asked him do you have a problem with me another coworker asked them to take it outside so that they wouldn't be making noise in the office area and that's where they does that mean that if you came back and shot place up that it would be justified so it where do we stop in this case mr we had gone back to his desk it was over so mr we got terminated  what we're calling the second half of this yes your honor yes your honor it was after they were they were arguing in the hallway and he slapped his hand and then at that point mr we did  notify continuously call him a little bitch but he didn't hit him back which i think should be commendable because most i mean some men would have a hit for hit in closing  the plaintiff would like to argue that that there are numerous material facts in dispute in this case and we would ask that you would remain in this court back to the district court a hearing thank you thank you both for the argument the case w