with this assessment the probationary period that he was put on from the june seventh two thousand and ten warning letter was not just a higher level of scrutiny as the district courts during his probationary period mr sauls very could not apply for other positions in fed ex he was already having troubles in the department he was in so he wanted to claw for other positions he was not allowed to do so because of this warning letter he received for supposedly not wearing a seatbelt the warning letter itself is suspicious  did he lose anything from the warning letter i mean what were the what was the there concrete consequences of that that hurt him miss promotion or something well he wouldn't be allowed to be promoted he wouldn't be allowed to change departments or even applied to change yes i think i get that but i'm just saying was there an actual request for a promotion that was denied because of that or what is the record show about the consequences of that warning letter there was no request because mr saberi testified that you know he knew that he could not apply for any positions during that time it's fedex policy that he would not be able to apply for other positions while on the sa and getting into an accident is there something that says if you get into an accident it is just as bad as something else i didn't i didn't think so what i stated these were preventable accidents so it least it was negligence on the people who received those counseling i would submit that a preventable accident is a higher violation a worse violation than mr decided to raise this to a higher standard and give him actual discipline well you know it's just it's a see if we want to get if you want to invite the court to come to get into the  process i would deserve stepping into that arena which i don't think we should do frankly but stepping in nonetheless i would observe that not wearing a seatbelt and operating for a lift is a is a heck of a dangerous thing to do just based on cases that i've reviewed in my court where forklift operators had a mishap fell into a forklift or flipped flipped it backwards were ejected injured sued the employer for providing them a forklift with without sufficient safety devices and the and the company says well you had a seat belt you should have worn it i mean these kind of forklift accidents could be extremely serious well yes the vehicular fender benders are fairly commonly encountered  probably my drive to court every morning on the expressway of one guy or another i mean that's just that's something that sort of happens with some regularity forklift accidents when they occur are  i would agree that forklift accidents are very dangerous to your honor however mr solver in his deposition testified that he was not driving the forklift when this happened he was you know sitting on the forklift after operating it and he didn't have a seatbelt on then and i understand this court is not a super personnel department or h r department but i consequence that mr solsbury was and received much much less disciplined then than he did a verbal counseling is just simply a note within the prison system which the personnel system it this again probationary period prevented him from applying to other jobs getting a promotion getting a pay raise now he did keep all of his benefit eleven of the district court's brief memorandum the magistrate's memorandum it says that write ups or probationary period can constitute an adverse employment action scrutiny but that's not the case the higher level of scrutiny would have been on the caucasian employees not mr salisbury so i would submit that an adverse employment action did take place and looking at at the evidence in a wide most favorable to mr mr solsbury that's an issue that should have gone to trial as far as the f m l a claims excluded i would argue that that should have been what did the document look like in terms of trying to lay a foundation for it and explain work came from certify that this is what really happened yes your hon r honestly that was not done properly that should have been authenticated and put into the record doesn't that distinguish this situation from some of the other cases where people have left this in i mean you no i don't think the court was told we're wrong in excluding that i think it could have been considered as far as a business record exception and fed ex didn't deny that it was a business record  at any point in it was produced by fed ex now should we have at least had some testimony saying what it was and and you know how it helps with this yes absolutely i would submit it should have been considered because it could have been it could have been admitted at trial their testimony proceed to morning your honour's i'm elizabeth low and i represent federal express corporation and has been employed with fed ex since one thousand nine hundred five and as we stand here today he still employed fedex and he has brought five issues to the attention of this court and i am going to begin first with the hearsay issue that's related to a family interference claim and then i'll address the four issues that are related to his race discrimination claims but with respect to his title seven and tennessee human rights act claims there is just no evidence in the record that any decision that was made by fed ex was motivated by race therefore irrespective of this court's decision on whether mr saulsbury was subjected to an adverse employment action on whether mr solsbury was classified as a d o t handler and whether the district court abused as its discretion in denying the request for additional discovery regardless of those decisions mr saulsbury cannot prevail on his race discrimination claims due to the lack of race motivation evidence in the record turning to the hearsay issue one thing i wanted to correct that mr mr davis and mention he said that the hearsay document was produced by fed ex just to generated thank you judge clearly generated but it regardless this document does not establish that mr saulsbury worked the one thousand two hundred fifty hours required under the f in a way this document purports to indicate that he was paid for one thousand two hundred fifty seven point two nine hours but he admits that this time included vacation and holiday hours and he admits that he didn't work on vacation holiday and vacation and holiday does not qualify under the if i'm away as time work specifically the reg the ethanol a reg twenty nine c f r eight twenty five point one ten c one indicates that the he was paid for barely over that right you said twelve fifty seven point twenty nine yes do i tell you could probably that tries to keep people under twelve fifty for various reasons that you just happen to accidently come in a bit under root will know you're on a fixed does not try to keep employees under certain hours for certain reasons it turns out that mr saulsbury is a part time employee and so is a part time hours worked the f l s a indicates in the definition of regular rate that vacation holiday time is not consider time worked more over this report indicates the total hours worked was eleven o nine point twenty nine and in addition this report this hearsay report was generated as of the run date says january twenty fourth two thousand and eleven in the date of the request  january twentieth two thousand and eleven therefore this report is not relevant to the determination of the twelve rolling months prior to the date of the request so therefore this this report even if this court decided that it is not hearsay this report does not show that mr solsbury was eligible for a family leave turning now to mr sauls barry's issue with respect to the warning letter he  this warning letter was not an adverse employment action because mr sauls very admits that he was not wearing a seatbelt he admits that he violated the policy and but i mean that's just goes to whether it was justified i don't know whether that goes to whether it's an adverse employment action to me if you just were randomly giving out warning letters to people based on race but to be in an adverse employment action absolutely you're right your honor and it does go to whether it was justified but he admits that his job title his responsibility his pay and his benefits were not affected and therefore it's not a adverse employment action he says that he he knew that explosive with a warning letter in the file there was no point promoting seeking a promotion because you automatically would get it but he does not present any specific evidence to show that there was any potential job that he was going to apply for  not identify there's no evidence of any specific job in the record that he was trying to but i mean if if i don't know if this is true but if if it's if it is true that if you've got one of these warning letters you can seek a promotion have any hope of getting it why should he have to then identify the job for which he would have applied i mean if that's the set of premises is true isn't it allowed to just say no of course i didn't seek anything out i knew i wouldn't get it well your honor that would be speculative that he wouldn't have gotten it and in addition the warning letters the warning letter though the record shows he's wrong about that you can get promotions after a warning letter the record doesn't show that he's wrong or right about it because he hasn't there is no evidence on the record of any type of job opportunity that he wanted or was available to him had he not been subject to this limitation but the limitation was actually limited in time to just twelve months so the debate we're having no it doesn't matter if  you're right about some are situated more worried about that come again your honor the debate we're having right now wouldn't matter to the outcome of this case if your position is correct on the similarly situated point exactly your honor this debate it doesn't matter to regardless of this court determination on whether that was an adverse employment action mr sauls barry cannot show that there is any inference of race discrimination in this case because of the similarly situated matter as we were as as you were discussing with mr davis and the potential comparative or received a counseling because he had a vehicle accident in and that is handled at fed ex under the vehicle accidents policy and under the vehicle accidents policy there is a there's a policy under of there's a policy of progressive discipline is what i was reaching for there's a progressive discipline policy and if there is only one accident in the last twelve months it begins with just a counseling and then if you have subsequent action accidents the progressive discipline increases from there however mister so is barry argues that he did not receive the lowest possible discipline now for his seatbelt violation which is a safety violation effects in the seat belt safety violation is actually handled under a separate policy it's handled under the acceptable conduct policy and in fact mr saulsbury was this was his second violation he previously was caught not wearing a seat belt and he admits that mr dean  senior manager at that station saw him not wearing his seat belt and gestured to him to buckle up so this was not his only first violation so he's not similar situated to mr hall and in that respect there were two separate policies they were separate types of violations furthermore mr holland who was the white compare tour he actually was disciplined under the same policy that mr saulsbury was disciplined under so mr holland violated the safety policy act acceptable conduct policy when he had a safe a serious safety violation he was caught crossing a moving belt during the sort operation which is a dangerous safety issue and he also received a warning letter so he in fact had equal treatment to mr saulsbury when the conduct or misconduct was equivalent furthermore mr solsbury cannot show pretext in this case because he has admitted the underlying conduct therefore that warning letter is not race discrimination mr solsbury also brings to light or his other issue is that his hostile work environment claim was based upon his temporary return to work assignment during this temporary return to work assignment fed ex assigned mr s ury to load and unload packages from trucks rather than operating the forklift as he had been doing previously because mr solsbury had vertigo mr saulsbury admits that his vertigo presents no warning signs and there are no preventive measures in as an inherent due to the inherent safety risks of operating heavy machinery like the forklift as judge clearly referred earlier that ex simply reassigned him for a limited amount of time about sixty days to load and unload packages because he was disqualified from draw because he was disqualified from driving but also because of just simple safety reasons this limited reassignment to unload packages was not discrimination was not based on his race because mr solsbury admits that all handlers black and white are responsible for loading and unloading packages mr saulsbury also argues that he is not classified as a d o t handler however mr admits that he does perform the duties of a d o t handler at fedex he admits that he suggested himself to the medical examination required of the deed ot handler and he simply speculates that he should have received an offer letter in order to be classified as a d o t handler however he provides no evidence of such a policy this issue is not a material issue it just doesn't change the outcome because he did have vertigo and that's not disputed finally mr solsbury brings forth an issue regarding his request for additional discovery he requested additional two additional depositions in response to the motion for summary judgment and the district court simply did not abuse its discretion by denying that requests because mr  previously granted an extension of time to take two depositions earlier and he failed to take the depositions at that time your questions thank you coun rebuttal i would like to address one other action that was taken against mr saws a very as far as the light duty he was supposedly put on when mr solsbury was now when when he was put on this he was put in a more strenuous position than he was already in and instead of driving forklifts around he was now unloading packages all indication that that is subject to or to go i mean i'd take it from a simple minded view that somebody with vertigo who's driving something around can be very dangerous where as you know if he's simply unloading packages he can sit down if he gets a little dizzy i don't know that you know any evidence i mean that is the point is is not is not you know like we can assume muscles in which case if he were doing something more strenuous that would seem discriminatory but it seems like a move that's directly related to his condition what do you have to the contrary well he says i we had depositions of these compared to ours scheduled for may twenty third with opposing counsel we had a status conference on may twenty fifth in front of the district court judge  wanted us char resolve this case we did try to resolve it we went to mediation in june twenty seventh it was unsuccessful let me go back we canceled the deposition set for may twenty third in light of the status conference and we go to mediation were unsuccessful they follow their summary judgment that's when the requests for rule fifty six the requests came in now this evidence could have helped i believe answer some of these questions as far as what condition didn't mr hogan have who was also put on t were handled under a different policy scheme that's true they were handled mr sawyer barry's violation was handled under the acceptable conduct policy that is a