to court judge carlos mcgee is decision is improper and goes against the established case law and principle that this court upholds the judge took the position of a fact finder instead of viewing the evidence and all inferences it favor pretext for discrimination and retaliation this court must reverse the district court's decision and remand this case back to the disher court of kansas for the purposes of this oral argument is uncontested by both sides but the  and the terminations occurred for the purposes of this oral argument i wish to merely focus on pretexts on both the discrimination and the retaliation so beyond a reasonable doubt which is even a higher standard that this court has for summary judgment on these types of cases that there is a trial bull case for race age discrimination when it comes to man mcgee's claims now the main in this brief show what the standard is for pretax is fassbinder hicks jury hamilton you're a mellow bird and bigelow and for the purposes of of this argument we're going to be of the time or you can speak to the music group oh i wish to speak to it one at a time i know that that's going to be a little bit difficult because of the facts of this case but i'm going to attempt to speak to one at a time was after one was during the circumstances but one was after significant litigation has actually passed now when it comes to the case of man man provides sufficient evidence to create a genuine issue  by x p o itself they committed they decided you investigate after complaints and they determined that the policy five to four was in consistently applied to people in the  for policy five dollars to four dollars only applies to the use of cell phones during during our duty work hours in our argument back to that is that man was off duty at the time and him using his cell phone was completely allowable under policy i have to for i thought he had punched in a few minutes before our argument is that the his supervisor johnny and tone dismissed him from his duty that the time so that could infer that he was off duty at the time because usually that policy five to four is for people that are working that dock or driving the rigs at the time and not necessarily for man should have at most received a written reprimand and not a severe suspension as the as a marine maher and kevin human are later on decided that a later on we gave to anthony a man we supervisor to discuss that and uses his cell phone right in the middle of the meeting right in front of the supervisor who will through a subsequent media and again used his cell phone  some of the lesser disciplined or we know your honor we're here to evaluate the circumstances and see if it's an old juror could believe that the suspension or terminations was a prete the man's case for race discrimination and yes your honor anthony a man was cited for those offenses but if you're actually looking at the timeline of the case he was he was suspended for violating policy five  dollars he wasn't suspended for defenses evolving in the trailer or any offenses outside of policy five to four and if you look at the timeline he was given the letter written instruction i believe on may th two thousand and fifteen just suspension occurred on may th two thousand and fifteen after he made a race discrimination complaint in which there were evidence submitted into e mail submitted to evidence or kevin human or human resource manager stated that the reason why he gave the suspension was because he believed that if the man was using race discrimination to manipulate them didn't honestly believe that man wide about having approved time off and i'm interested in what your evidence is to make that statement  expedia had that seat it would have proven that he would have had those times taken off the only evidence that marine maher presented was his two thousand and fifteen j s p sheet which is a completely different orbit of  conversation happened on june th two thousand and fifteen when he was in pennsylvania attending a wrestling conference for a sign this is significant because he always attends a that conference every year and if you look at his two thousand and fourteen p t o sheet that he made he has those day taken off not necessarily the exact dates because of the year but he has the weekend of i believe it's june th to june th i believe which would cooperate with his story that which will cooperate with the story that he reasonably believed he had those days taken off well employer acted for a reason different from the articulate agrees and what you're saying is that there's more there is evidence of ms maher actually didn't believe that we could put we could prove to a reasonable i believe a reasonable juror could infer that she was that she did not have an honest belief because of the fact that she did not have the original two thousand and fifteen it's for a line about having paid time off days is disingenuous when you're looking at policy i for two which basically states that if you notify a supervisor three hours before the absence occurren e and in place i'm on notice that the sub the concept that the consecutive days that you are off from work should only be counted as one attendance event so at worst he should have received an attendance strike so this goes this goes to show that not only could a reasonable juror believe that marine martha testimony was or she did not have an honest belief a secularly we can also show that there was an inconsistent policy application it's well and i know there's a lot of questions with this case but i want to reserve three minutes for the rebuttal thank you granting summary judgment for two reasons st as a threshold matter appellants did not appeal the portions of the district court's order granting summary judgment on the appellant's harassment claims it was originally a twenty count  three hundred and seventy paragraph plus complaint in the district court there were a number of different alleged claims of harassment those were not raised in the initial brief or in the reply of appellants and under the  binding precedent of this court including horne versus mccall those claims have been waived so we would ask at the very least at the court affirm that part of the district court's order granting summary judgment nd regarding the claims that are properly before this court on review which are the discriminatory and retaliatory discharge claims none of the three appellants a presented sufficient evidence to create a triable issue as to pretext with respect to it is that there's there's no way that appellant man can credibly argue from the record that he did not engage in the conduct that formed the basis of his terminations as judge kelly pointed out  counseled he was observed violating the personal cell phone use policy and then brazenly decided he wanted to use his phone in the middle of being counseled her violation of that policy that's admitted there's no dispute about that at all man admits that now what we what we have here is we have an argument that's been asserted by appellate man that well other people violated cellphone use policy and they weren't terminated that's true that's in the  record the nature of this policy is not the type of policy where as soon as someone is caught violating it there are good and neither was appellant man in this case immediately terminated it's a case by case basis for how that policy is applied but is certainly not applied in consist in consistently on the basis of race or engagement in protected activity what we what we have here in this case is an utter failure to point to any comparative whose conduct rises to the level of  appellate man's conduct in terms of what i would consider to be the double foul on the cellphone use and even when appellant man was given the opportunity to have one more chance at coming back to work lying about having proved time off now on that point it's worth visiting the arguments that appellate man has is raised here today and one of them is what frankly i can only refer to as the myth of the missing time off she  there's no record of any extra time off she'd ever existing and with respect to judge matheson's inquiry maureen maher the h r generalist who was evaluating the situation she referred to  sloan who's the personal supervisor who maintains these records and found that there was no such record that showed approved a time off for the period in question more importantly mr mann was deposed and was asked questions on this mann admitted that the sheet that we do have in the record that's in existence that she was meant to indicate all of the time off that he had requested and what his answers were in his deposition were that  discovered there was some nd forming needed to fill out and he merely transposed the dates from the st some of the dates from the st form on to the nd he was asked specifically in his deposition were the dates on the nd form that you're talking about that frankly i don't believe exist but that you but you're saying exist where those dates different from that st form and he said no so again though the even if that form existed the proper frame of reference is what the h r generalists had before her at the time and there was no such proof of that form i think it's also important to point out with respect to the the issue of the cell phone usage while being counseled on the cell phone usage it's been argued by appellants counsel that there can be some type of inference that mr man was not on duty when he pulled out his cell phone and started using it during the counseling i there's no inf needed in the in the brief we cite to the record evidence it's authenticated by the affidavit of maureen maher this was not a topic that was in her deposition but we have the affidavit testimony authenticates the time records that show mr mann was in fact on the clock when that happened but i would suggest that even if he wasn't on the clock he was still in a meeting with management being counseled about a policy violation and i don't think it takes  huge stretch of the imagination to submit that that's frankly inappropriate and insubordinate and worthy of some form of discipline none the less as as mentioned mr mann was given the opportunity to have one more chance this went all the way up to expedia as corporate ice president of human resources who said what skill of appellant man a chance to come back to work except that when he was asked to come back to work he made up the story about the paid time off and then  terminations occurred there's a lack of comparative comparative evidence here there's a lack of evidence showing that the employer did not have a good faith basis for the terminations decision that it imposed there's also it's worth there's a complete lack of any evidence of any statements reflecting discriminatory retaliatory animus on behalf of maureen moore or kevin human or or bruce moss the vice president human resources all of which were part of the deliber service right after he made a discrimination complaint i think with the record makes clear is number one the decision to place him out of service by maureen maher record testimony indicates that she made that decision before he rode out the race discrimination complaint to just a finer point this was not your typical race discrimination complaint appellant man had been accused by other employees of using his race to quote unquote play the race card in the workplace and so appellant man's response was sort of a slap back against that complaint was to then point the finger and say that he had been discriminated against nonetheless you're more than submit that there's a distinction between employees and is complaining about discrimination which that would be protected activity that could trigger your honor i'm a dressing you as if you're sitting here  instead of leading this way towards a screen is that ok that's fine ok i would submit there's a distinction between an employee who makes an affirmative complain of discrimination and that would be protected activity verses that employee then basically race discriminating against other employees which is what humor is obliquely referencing in that statement that would that would that would not be sufficient to create a causal  for retaliation purposes what's clear your honor with respect to determination process is that was essentially additional commentary that funeral it offered which was in approval of h r g mars recommendation very fully briefed recommendation in support of man's terminations so that the recommendation came from our that's fully supported based on the facts i think that humor is reference to to man playing the like to talk about mickey apologized and what i'd like to ask you about mcgee is courses in a different position she has a very embarrassing awkward situation at work and goes home and fired for that why would not x pos attendance policy five hundred and forty two apply and critically part three c which provides for attendance strikes which would require six before she was terminated honor it's my understanding that the attendance policy is the is used in the classic sense of an employee who fails to show up for work as opposed to a situation where an employee shows up at work and then leaves and there's a specific provision within policy five dollars to four dollars that refers to on authorised absence from the work station that is the more specific and on point policy that would apply to the situation and what we would  ask the court is to respect the business judgment of x p o to say that that specific policy controls over the situation of a general attendance policy with respect to  appellant and with respect to the authorised absence from work issue it's been argued in the briefs that this is a situation where mr mcgee has been singled out for for this for engaging in this kind of him being terminated let's be clear the record indicates that numerous employees both both white and black were terminated for authorised absence from the work station that's in the record it's never been questioned in this case but most importantly x has gone even further and pointed to a substantially similar compared or in the form of d s r greg handy who granted it's not exactly it's not two hours of work and then  leaving it's showing up for five minutes and then leo is his emergency that so comparable your honor there was no emergency but to be clear there was there is no evidence that the only evidence that supports that there was an actual quote unquote mcgee's own testimony after the fat what evidence would you want well your honor i think that if we start to go down the road of of  individual situations as excusable or not excusable for leaving the work station i think that we then start to intrude upon the business judgment of the employer to differentiate between different levels of the problem and she could she left or the problem she didn't call in and say i had to leave because judge kelly that that is the rub which is it which is exactly that if in the documentation that miss marr's put together regarding this terminations one of the things that she mentioned in there was that miss mcgee not just simply left the workstation without alerting anyone and for a moment being sympathetic to the what the employee says the situation was there are still ample opportunity while sitting in the in the forklift to drive the forklift down the dock of the bay and simply mention to a supervisor what the situation is or even back into an employee to tell the supervisor what this what situation is or even just simply leave a note none of those things happened and more importantly if the employee was leaving to change clothes after only two hours of work why didn't she ever come back unreasonable as to be evidence of pretext yes your honor that would be possible but i don't think it's possible in this case because i don't think that we should be jumping to the assumption that an employee who claims an emergency after the fact that that that subjective belief in that employee that there was a reason for violating the policy is what should infect the analysis the analysis should be what is what is the employer aware of at the time what the employer was aware of here was an employee who left work presumably to change clothes and never came back there's a there's a there's a credibility issue here and i would submit that in a trucking facility where employees may leave work for various reasons the going to be a number of employees who come up with any number of excuses as to why they didn't come back to work why they left without permission and i don't think that it's incumbent on the employer to then get into a level of scrutiny where they have to start accepting an explanation by an employee that is not inherently not backed up by what the excuse by the stated version of the excuse that's given your year over time but i want to ask you a question and any other questions from the panelists we review all of this and broader and vironment which is to say on april th she reported that other drivers were discriminating against her because they wouldn't drive with her she is a female and on april th she leaves a written statement  at effect on april st she's buyer don't we consider that your honor i think i think you do consider i think the way you consider it is to say that in a normal in a normal retaliation case were trying to analyze fascia case you're trying to analyze is there enough causal connection to even get to the issue of asserted legitimate business reasons and pretext i think that the close proximity that you're talking about there would be relevant to that increase it's part of the reason why we didn't bother year however i'm aware of no authority within this circuit that would suggest that me or close temple proximity provides a level of job insurance against terminations for a legitimate business reason especially when to outside that protected class were terminated under the same circumstances for all those reasons we asked that the court affirm the district court's order granting summary judgment thank you for your time you have to pull it down a bit because there are certain circumstances that need to be addressed here that appellant counsel misrepresents to in this court today in the corporate deposition and also in the in the deposition of marine maher the human resource manager the human resource manager who recommended the terminations catena biggie she stated that when she is looking over whether what punishments to give to the for violating certain policies that it is a case by case basis but in her corporate rep and in her individual deposition she stated that they would not suspend or terminate vs ours for leaving work early due to an identifiable emergency and in the corporate deposition when she was representing expedia she stated for the record that mcgee situation was an identifiable emergency or did she call back had to go home and change because of this and i'll be back in thirty minutes in the deposition she states multiple times when she tried to contact the management staff there but they were all off the docks you have to realize that during this time this was out twelve o'clock in the morning most of the management staff are either at home like the office staff or at home or on the dock working in working to load trucks in and monitoring that loading truck process what appellants council is trying to date is the key after having a verified gender discrimination complaint by x p o should've went back to the dock where there were hundreds of people that have been perpetuating th gender and race discrimination against her with her backside that way to find and to find a manager there to get the time off and i believe that that's improper and i believe a reasonable juror would not would not find that as a sufficient reason to preclude are to not believe that the terminations of this suspension did not have any race or gender discrimination attributes attached to it your hon were council basically argues that there is a lack of compared or evidence and that there is a lot to statements showing showing and amis there is also an e mail by the vice president of human resources bruce mos stated that he decision to suspend anthony man because of his race discrimination complaint could be could be used to show entrapment they knew that that their testified that policy five to four is violated all the time at varying degrees of seriousness that are then people are never punished for that for counsel to come appearance today to say that there is no evidence of them suspending are no evidence no compared to will evidence is because the fact that boy a man is the only person we talk about manowar morning man is the only person that was suspended for the fact that his license was suspended two weeks a year prior counsel absent another question from panelist you've run over about the same amount i know i apologize i don't know so much in this case