accident he later jokes i used to be able to count to ten now i can only count to nine and a half the district court in granting summary judgment for the defendant appellee on all counts my complaint resolved many hospital by an ambulance that is owned and operated by u s steel his employer on the day that he was transported to the hospital laura lee made twenty four call twenty four calls that evening laura leave the director of the plant medical department she called steve coppell check who was her supervisor and she made four calls to james van buren who was the manager of employee relations many of those calls were before mr joke i ever returned to the plant medical department and ever made any of the representations or indicated that he was disinclined to return to the plant medical the next day a reasonable juror could conclude that laura leave was consulting employee relations about mr joke i before he returned to the plant medical department consulting with them regarding an issue she had already labeled her i'm sorry an employee that she had already labeled as difficult and frustrating in her experience with him related to his earlier back that's an important fact because there is no reason that laura lee had to consult with employee relations about mr jope guy until after there was this alleged  disinclination to return to the plant medical department until after there was an issue with respect to his alleged misrepresentation the alleged misrepresentation being that he stated that his finger with amputated the discovery revealed that the subject of these various calls was your client mislead couldn't recall talking to anybody until we got her cell phone records and then confronted her in a second deposition regarding those couples so you know there are calls and so the inference you are jury to draw is that they must have been talking about your client with a certain well i don't think there's any dispute that they were talking about mr joke i i just asked use to discover reveal they were talking about you're quiet and you said we don't know initially her first deposition she had no recollection of any calls when we confronted in her second up position and she did indicate that she made those calls that was you're missing  point i think what does discovery reveal was the subject of those calls she stated that she was speaking with the individuals from employee relations about incident tony and dr tony gave him a piece of paper documents that said that there was a partial imputation of his finger and he returned to the plant medical department that night for the sole purpose of providing those those documents to the contract nurse that was on duty there there was no medical doctor and his leave was not there at that time of night she left at three o'clock m has the nurse is the one who said that mister mr joke i made this comment or statement about amputation mr joke eyes testimony is that the only joke that he ever made about this apparently keep anything from getting in there he had it right the finger was bandaged i actually was able to go to the plant medical department and we took  pictures of the plant medical department and the cleanliness of the plant medical department is certainly an issue in the case and certainly an issue for mr joke so he did take precautions there they have a fact that treated at the hospital and was leaving the plane bitly and seventy five miles from the plant and what he asked was that he could see somebody in his neighborhood he wanted to see a doctor his own doctor the reason that the appointments were set up were solely for the purpose of not having any lost time there was never any treatment ever provided to him at the plant medical department there with in the dictionaries when he came back they only took an x ray apparently for the purpose of determining whether or not the finger was amputated however i will say that they never took the bandage off but they never was a little troublesome as you say the only thing he ever said is nine and a half f fingers yet the record indicates at least according to the company he said quite a few other things about this finger and it being amputated i understand that you dispute that second of all you say you came back to the plan and in your of treatment and there was no one who said that the x ray was for the purposes of treatment he had already been to dr tony who had already treated him so why do you think that they did the x ray because he wanted to see if he had nine and a half fingers and what was the point of knowing whether he had known and have figures well this is what i want to talk about this is my room and if he could work so what on earth is the matter with that they never said that that's not part of the record in any way shape or form the they had already determined dr tony had made the day before the recommendation with respect to his ability to work at believe it was one handed work  this is this goes into the second sexual scenario that i wanted to highlight mr benito ok after he sees mr joke i when he comes back from the doctor at tony's office and gives him the medical document he hears what mr joke is saying is that his finger was surgically amputated now mr joke i denies that he ever said it was surgically imputed but he did say of course make other representations about his finger just not jokes he did say that his finger was cut off he did say that his finger was imputed because that's what he was told by the doctor and it was you could see that it was cut off everybody who saw that finger at the time knew that it was it was kind of it was hanging by the skin of the fingertip they were able to put it back on what you seem to suggest that what he said was technically correct so shouldn't suffer any consequences from that but how does that square with does we do know this that mr but he does testify very specifically people say all kinds of bizarre things about their health people are not doctors and they don't know medicine he didn't believe that mr joke i had had a surgery on his expressed surprise and he testified to that credibly twice that when he talked to literally she expressed surprise that mr joke i had surgery that is entirely inconsistent with her not appearing on schedule or misrepresenting their medical conditions was not far i mean is there any comparable non disabled employer that you can point to glass typically the way you prove discrimination that hey my guy was fired when other people who did the same thing that he did continue to be employed is there such a person on the record well the activity is allegedly making misrepresentations to the plant medical department about the physical conditions there isn't anything that i have in the record of anybody else being treated similarly with out into the billet there are however many complaints that have been made of discrimination in particular related to accommodations there were fifty some complaints against  well or maybe that was just because they wanted to be sure he didn't reinjure is back to mislead just bad to injury is a high profile case in high profile is it backwards that she used and she also used the word frustrated when she talked let me ask you this though you are claiming well they were discriminating against him because of his two thousand and eleven back injury but in the true that about a year later they accepted him into this eighteen month training program to become a maintenance contract for a promotion and essentially that it's it was really a promotion but it was a job that was less strenuous compared to the jobs that he was being given so that was that he actually sought his own position a vacant position and that could terms of his assignments the job assignments because he was given assignments that he could do he was baited while he did them but he could do them and i set forth all the facts to which he testified that no person could say i was reasonably treated he was he was put in an ambulance and sent to the hospital for a laminectomy against his will i don't think that anybody would say that that was reasonable treatment he had to check himself out of the hospital to avoid having a surgery the morning runners and mark mcinerney representing us steel runners is this case is an effort by mr joke i to use conjecture and speculation this direction and confusion to try to manufacture a case where none exists to her credit the district judge maintain focus on the material issues in this case not all the collateral issues the point of tries to inject into this case it could clear that none of the four causes of action plenty of tries to assert can be supported the district court very thorough opinion granting summary judgment we believe should be affirmed the secular city what was the subject of all those calls before the extent of his injury was no judge i don't remember mislead remembering that issue as i said it that deposition both lead depositions and i don't remember that she knew that it was her boss or she could have been talking to him  and why she tried to van buren i'm i don't remember that coming up i don't think it's been briefed either so i can't answer your question turning to the disability discrimination case which is which is where most of the discussion with this morning we think there's two bases for affirming the district court and dismissing mr joe case case one is the the requirement but the cases that we've cited or all were all decided well after the two thousand and eight amendments to the eighty a and there the court has continued with the but for standard as the proper standard these cases i'm not even sure that the if a court were to said and i don't believe any courts have said that the two thousand and eight amendments make any difference the language change from from because of two on the basis of and i would say that's  same thing now why congress changed the words is anybody's guess but the way congress does anything is anybody's guess so i don't think that there's there's there's a basis to argue that under any standard mr joke i cannot show that his disability had anything to do with his terminations his evidence is i just know that's what happened that he somehow defines this as an answer to a question from judge gilman  i believe admitted that there are no similarly situated employees who were treated differently than mr joke what about the what bothers me a little bit though is you know that he shows up lying but he comes both days on the follow up medical visits you don't even call medical visits but check ups at the plant medical department and then there's this question of whether he's joking or not about having his finger cut off and for those three things he mean just strikes me that very harsh i mean it's not like he stole money or blew up the choir or went on a raid or rampage with his fellow employees i mean it raises the question you know one of the standards of how you show pretext is that the reasons given were insufficient to motivate the employers actions and why why do you think these two being tardy twice and joking about the status of his finger justified firing and staying the course question before a answered directly i point out that that that basis of pretext that you just identified has not been addressed by the pla in this case they have proceeded into the basis that there was no basis in fact now just to answer the question i'm i suspect that if it had just been the two tardy appearances he would not been fired he might have been disciplined seven o'clock by the way it's his starting time and that wasn't some strange time pull out of the air that's his normal starting time to time plan medical and the morning he was brought in for consultation evaluation but the key one was lying about having his finger cut off and i'll tell you why that's an issue for us still his job this maintenance job he had didn't have him in a particular player place in the plant all the time he wandered around this huge plant that w matter he was assigned to different places in this huge plant every day and the company had to take his word for what was wrong what he did so his his his honesty is extremely important in his job as opposed to somebody might work in an auto plant misty's and same spot every time you put the door on you know his honesty is and is much is an issue for a person in this this gentleman's job that is very important and the company takes take safety very seriously and so when when somebody comes in lies about having his his finger partially cut off surgically that's taken very seriously by the company but dr madden actually took his x ray the very next month the first morning after second ok well he was injured on a wednesday and i can never remember these dates but he was injured on a wednesday the first day he was process the union basically accepted the testimony from the company representatives particularly ms lee about what mr joke i had done or not done and what he had said or not said and asked for leniency basically don't fire don't fire this guy so the union appeared at what's called the nine b hearing which is the due process hearing to determine exactly what punishment to impose step two which is more or less an appeal of that decision to step three which is a further appeal to a higher ranking relations rep  representative and then the union found an arbitration demand the case was heading toward arbitration and the union withdrew the arbitration demand for reasons that we can only speculate about nobody from the union was  significance if any in terms of the ultimate decision by the company of the union essentially as you claim at least conceding that he had lied to the company well  i i think it's important in showing and this is the second argument under the disability discrimination claim the claim of pretext is that there was no basis in fact for for the determination  terminate and the company's position is that that even if for the sake of argument he didn't say these things the the the decision makers have the honest belief that he did based on written statements from the nurses three different nurses who heard him say this and also mr joke non denial during the end the nine mission it was the nine b hearing is when the decision is made to fire him and he said then i'd be hearing that's the exhibit that's being challenged in this case that's when the the non denial state police union later ron says the same thing in subsequent hearings but the the decision is made after the nine b then there's two steps of appeal in which it's affirmed so when it was final i suppose it's not final to they were through the  eleven reaffirming that the honest belief rule is the rule and it is the standard in this circuit and also the stub cases completely different because there was lots of evidence of anim the member for the decision maker or a person i think it was the person who made the recommendation for discharge and in this case although there's a lot of conjecture there's there's absolutely because of his because of his disability or because he you might be filing a workers compensation point there was a question of ms broke about the treatment of mr jope guy after his back injury two years before his finger injury and she kind of tried to soft pedal how he was treated the come in in the complaint in this case the pla dallas that he was treated properly he was accounted he was given restricted work to do because he couldn't lift anything he couldn't bend in the first i believe it's eight months after his back injury so he was he was sent to a training center that's the plant just down the street from the plant and did sedentary work for something like eight months until his condition improved and he was longer the law of this circuit is is incorrect so we've got to bases on the discrimination claim the the but for the failure to show causation of the but for standard and inability to show a pretext because of the be a showing that the plaintiff made claims that were of their full rights afforded end of the act and the primary claim that he makes is the the ability to get treatment from someone else from his own doctor doctor of his own choosing when the act makes very clear that an employee does not have the right under the act to do so for the first twenty days after the injury that doesn't mean that the employee can't on his own dime go see another doctor but it's such treatment is not instead of it might be in addition to treatment by the company and he claims there was no treatment ever at the plat medical the part he did make that claim your honor and he's not right treatment is a lot of different things in this case he was evaluated when he finally showed up the day after the injury it at noon dr madden looked at the records  talked to joke i immediately recognized that he needed to see a hand specialist so she sent him to this doctor tony who's an independent hand specialist nearby that's that's treatment whether whether she unwrapped his finger or not sending him there is an evaluation and of the act that that that's sufficient the day afterwards when he was we called back is we've discussed there were x rays taken and preferred reasons have no basis in fact that they didn't actually motivate the chip discharge or that the preferred reasons were insufficient to motivate the discharge and we believe that we have shown facts that they are directly on the pretext issue the honest belief rule is in effect one last opportunity for the employer to prevail on summary judgment the employer can rebut evidence of pretext by showing that its actions while perhaps mistaken foolish trivial or baseless were not taken with discriminatory intent in order to rebut that rule and i'm sorry in order to put the employer has to show in order to invoke that rule is that a reasonably relied on particular facts that were before it at the time that the adverse decision was made the employee can provide present evidence that the employer failed to make a reasonably informed and considered decision before taking its adverse employment  action some examples where the decision is based on one conversation with one witness days or a case of the sixth circuit in two thousand and fourteen a decision being made without hearing the plaintiff side of story a biased one sided investigation obvious conflicting witness statements key witnesses not being interviewed or failure to conduct investigation this brings me back to the point that i spoke with respect to mr bennett says the statement he contacted laura leave and told laura leave what he believes the representation was that mr joke i made about his finger being imputed morally did not call dr a tony lawyer lead called employee relations and begin the disciplinary process there was no investigation whatsoever to determine whether or not what mr bennett has was saying which he did not believe and he did not credibly think that dr tony would have conducted an  day after this injury none of that points to an honest belief that mr joke i had had committed some by a lesion when we get to the grievance process which again i want conversations that go back and forth as a matter of policy are ones of compromise the during that process it's important to know that jennifer hickey the only person who can testify for the employer about what happened because mr simpson is to see east jennifer he said she understood that his finger had not been amputated and that the alleged misrepresentation that was being made with that he said that the finger was cut off in the injury the traumatic injury and that he said that it was thought that was cut off but it was not cut off she didn't even know that dr tony had made this partial imputation diagnosis she also said that they did not rehash the facts at the time that she was involved in these meetings that it was all about whether or not mr joke showed remorse and to the extent that the union said mr joke i jokes around a lot that's true mr joke at jokes around a lot but it doesn't mean that he did something that deserved germination and i also just want to say that if you read those you know it's determined that they are in good miscible is hearsay you will never see the word surgical imputation because that was never floated as a subject of his misrepresentation until this litigation story thank you think you  be submitted