areas johnson your honors this is a very straightforward matter the lower court ruled improperly incorrectly the lower court in fact did not apply applicable standard with regard to comparative with regard to  pretext this case has an overwhelming abundance of evidentiary documentation as well as testimony from mr johnson himself both his affidavit which were then taken into consideration the lower court in fact stated that he did not assert her snow of knowledge when in fact through out the entire affidavit he indicates in detail specific experiences that he encountered which rise to the level of having the county the appellee in this matter violating his title seven who's for the it indicates clearly where the mayor acknowledges having reviewed that and made a determination ultimately speaking there was a convincing mosaic of suspicious timing of when certain retaliatory actions were performed committed against m johnson systematically better treatment of so many situated personnel you have a number of comparatives both who are simply scituate in terms of duties responsibilities titles positions held even during the relevant time period you have the difference between the two is that the comparative or white versus mr johnson who is black specifically that he's ultimately decision to terminate mr johnson rose was as a result of the failure to allegedly change an update his address as well as slamming a door verses his comparatives other sergeants police sergeants who either were accused of fraud violation of personnel policies failure to update addresses and so forth in addition you have certain number of individuals who are present as comparatives for the fact that they received for far worse actions than mr johnson was accused of oh it's speaking of compare client presented both as to the level of of actual retaliatory discharge escalations of examples in terms of the semi situated in terms of duties responsibilities policies and protocols the face and are similar in material aspects as my client with this was presented this is presented in terms of captain tyrone white's deposition testimony where he clearly establishes and confirms in his own deposition  patterson the director who ultimately made the decision to terminate my client detail specifically at the who's the basis for his term a nation the decision helps my case it does not hurt my case it confirms proof positive that that the lower court should have taken into consideration certain number of facts that were presented they should have taken in the lower courts have taken into consideration the affidavit that was filed the number of documentary evidence presented establishing a general material issue of fact furthermore the fact that the county did not rebut recount or a lot of the statement of facts that was presented it means it was deemed admitted just from the rule of procedure alone you firmly believe that the l court misapplied the standard at that time and this new standard which is not much different than the last but specifically that there is sufficient basis to confirm that there was a level of reliability in terms of evidence to allow the jury to hear this case there's no for i want to ask you about i mean part of the question about the adverse employment action has to do with these what you refer to negative monthly evaluations i couldn't find those in the record on appeal are they in the record on appeal and if so where the negative monthly evaluations yes or because i mean that was and that's part of your argument as i understand of the negative monthly evaluations or the adverse employment action that well that's one of the many but are they i can find him are they in the record on appeal i'm not mistaken they are in the record temple proximity of when certain complaints were made by my client in a short order a month there after he's been written up and certain investigations there's one specific incident where he was involved in a shooting where he appeared to as approach police protocols that occur and typically those investigations last a certain extent a period time on the heels of his complaint a filing of charge of discrimination to see certain allegations were made that in fact it process of violating the protocols and policies and who is then the subject of e mails to keep personnel both at the in the hierarchy of the police department as well as at the county and mayor's office level assuming we get to pretax it seem like to me the inner kind of the last straw was when when your client slammed the door and bad like i wouldn't like it  occupancy in the building and to still itself my client steps out of the room with this meeting to go to a copy machine upon return after advising them to his he has health concerns that he's going to the doctor is not feeling well and he leaves and he closes the is that that's just a low level basis to find justification on their part is to sort of pretext the reality the matter is this is a number of prior incidents indicating confirm that there was an intent to to to discriminate against my client he filed a number of charges discriminations it fall filed claims within the internal hierarchy of the police department has comparatives who have done far more worse things for instances sexually molesting children in their custody and still are allowed to continue to be gainfully employed my client has over twenty years with the with the miami dade county police department the proximity of time of how long it took for them to all to me started writing him up to find a way in basis to terminate him it justifies and confirms in fact it was some discriminatory animus against who's your best compared or my best comparative i would have to say is sergeant atherley sargent of status and title and duties and responsibilities he was it accused of certain things and found guilty of those items and is and initially was was going to be terminated but instead they entered into a memorandum of understanding and allowed him to continue to be gainfully employed versus my client who allegedly slammed the door and failed to update his personnel file gets out right terminated thank you thank you hon retaliation claims and all the claims in the complaint for the reasons set forth in our brief brief in this case the plaintiff has never denied that he committed the disturbing misconduct  documented in his disciplinary action reports that led to his suspensions and terminations from the miami dade police department it is therefore undisputed the court hilt that the county had legitimate nondiscriminatory non retaliatory reasons for terminating the plaintiff based on his multiple violations of the county's rules against insubordination disrespect of authority lack of professional judgment especially especially as a police sergeant  paramilitary organization such as the police department in light of these undisputed facts the district court focused its analysis on playing a spell you're to establish a pretext as well as as your on a st pointed out however i will address this since you pointed it at out in your questioning the monthly evaluations are not adverse employment actions are they in the record you agree that they're  attached to the deposition no i don't think they're in the record as a slowdown in my brief they're not there in addition to that there is no evidence that these monthly evaluation had any impact on his pay his status as a police officer the terms and conditions of his employment in fact monthly evaluations i can represent to the court do not have any effect on the terms and conditions of employment and in fact you know it i'm sorry no i don't know whether they do or are they don't because they're not in the record and i don't know what they say  i mean i'm going to check with the place he told me to look but if they're not the record then how do we know whether they helped him or hurt him or i think that's absolutely correct if they're not in the record we don't but even if they were  city which clarified that it proffered comparative must be similarly situated in all material respect i'm not sure i agree to clarify it when you get so many judges involved in an that language for the nearly identical language that was in the district court's order you would come you would come to the same conclusion and same outcome a month ago cannot cause a follow up on th have falsified payroll records in it i mean because you know there was misconduct on his part but it was a different kind of misconduct  your position that he cannot be used as a compared or yes the lewis under lewis under lewis is similarly situated compared or would have normally were generally quote engaged in the same basic conduct or misconduct as the plate played it and under this court's precedent there are many cases in which the court looks at the type of conduct involved in assessing whether a compared her is is valid in this case we're talking about plaintiff's conduct which was insubordination disrespect of authority lack of professional judgment separate rule violation that he was charged with the conduct is not the same in terms of actually actually you know blatantly disregarding  superiors orders disrespecting your superiors and your supervisors i mean in this case plaintiff attended several meetings where he openly and blatantly and that's what the court about thirty three and five well i can only go by what the court has said for example in men it's a female plaintiff with four violations was not similarly situated two males that each had  of motion after only the nd instance plaintiff was given chance after chance after chance to correct his behavior multiple records of counseling written reprimands thirty five days suspension before he was ever considered for terminix when you're ready i think i kept mr george pierre from talking about the retaliation climb but that seems to me to be interesting from from your stand standpoint is that as i understand the record director patterson knew about mr johnson's and it is not surprising that those complaints overlapped with some of his disciplinary actions but what plaintiff has to show for the prime aphasia case the causal connection  and that causal connection requires proof for some in disha that the complaints were the reason the but for cause the timing is part of the right i mean is part of that but temporal proximity alone the courts have held is insufficient to establish a causal connection especially as but especially where as we have here the plaintiff was already being disciplined prior to the initiation of the complaints and then discipline continued afterwards that was the case in the hill vs sun trust bank case in tw eighteen where the court held that there was no causal connection where the discipline had started before before the complaint was ever lodge here you have this you know extensive disciplinary history that had  and then he claims that after that new tune it resell the gain retaliating against him with these lower monthly evaluations and other things that are not adverse employment action and so our position is that the temple proximity alone is sufficient because the record establishes that the discipline was occurring both before and after the complaint but well at the end of the day that's the aphasia case and i don't think it really matters and it doesn't mean that the plaintiff wins because as the district court analyzed a plaintiff failed to establish that the legitimate non retaliatory reasons were a pretext for retaliation legitimate non retaliatory reasons for his terminations could i just ask you to to respond to the argument about the the incident where the the door was shut and the supervisors were locked in the room in your opposing counsel says oh that's that's just more reason why this should have been a summary judgment graham because there's a factual dispute about in and of itself whether the door locked or not when you're in a meeting with your supervisor is disrespectful it is a lack of professional judgment and it is  know disrespectful insubordinate conduct especially where it's here the supervisors had asked him to stay in the room because they were conducting fishel disciplinary business with regard to  dispute about well in cases where plaintiffs have argued that there could their conduct was less agree just or not as bad as other people who were disciplined less severely the courts have rejected those arguments because the courts does not sit as a as you know as a super personnel department to evaluate whether some conduct is more severe than other conduct and in this case he's saying oh you know i slam the door and that's not a big deal whereas these other people engaged in actual mirror image comparison also don't exist this case has sufficient record evidence wherein we detail specifically for instance sergeant philip below so a white male who failed to update his address in personnel the low so b e l o s o he failed to update his personnel file and in knew of being terminated like my client was terminated he received a record of counseling we've listed more than  more than ten comparatives a number of them simply situate in terms of title duties responsibilities and by the way all the comparatives fall under the category of being overseen by the collective bargaining agreement between the police of the police officers irrespective of and actions unbecoming an officer irrespective of rank falls into that category personnel misconduct fall into irrespective of rank irrespective of violation it's a catch all a number of these policies the system is structured and set up in a fashion quite frankly to make it easy for for this defendant to come forward with a pretext justification for a discriminatory animus the temporal proximity of time as to when in fact my client was being retaliate against is very clear in the record we have a number of the e e o c charges that are within this record the detail specifically what transpired my client's affidavit in response to in opposition to the summary judgment which quite frankly the lower court did not take into consideration in each and even states it doesn't take that into consideration when in fact all the material elements necessary for a valid affidavit to be presented were submitted it would have been admissible in testimony if  had a history of prior discipline sergeant solicited a yes ma'am as my fact it's very difficult for an employee to be standing employee of the county reached a level of sergeant meaning you qualify number of years pass a task and not have some kind of slight there is no such thing as perfection in the workplace that we may never in strive to be reached at however your quote was far from that is correct john we don't say he was perfect we say that he's he was a duty bound  employee he was loyal to the organization he followed protocols he wrote up individuals i'm sorry he wanted to do this was a pretty this is a you are if i may at some point in time going back two thousand my client entered into a settlement agreement with the county confidential settlement grant wanted to keep terms in that agreement that they were supposed to purge a number of these write ups that supposedly allegedly were taking into consideration so in fact he is similar to atherley in terms of actually supposedly having three or four reprimands write ups to spare reactions my client does not have the twelve because those a number of those should not have even been available to be seen by character j d patterson or anyone else for that matter because pursuant to a confidential settlement agreement those those a number of those from ethan k which are listed in the record were supposed to have been p and therefore play siemens you're saying that there was even more misconduct we weren't supposed to look you know you're on i'm not saying i'm saying that into that settlement agreement i'm saying that what you see presented by the defendant appellee is number of those fact three to four potential disciplinary past actions in compare very similar to sergeant after lee's disciplinary actions so you have in fact a comparative the should have been taken into consideration by the lower court and was not where one performed actual fraud was found guilty of that fraud and was allowed to maintain his gainful employment versus my client who allegedly slammed a door allegedly failed to update his his personnel file and was terminated after a long extensive years having to pass various exams to reach the level of sergeant had just taken the lieutenant's exam and passed that exam you find yourself in a situation where the motto of protect and serve where my client took that very serious where in fact he attempted diligently to be an ideal police officer an actual sergeant where he was supervising a number of individuals who were out in the community where community members were coming and complaining specifically of their treatment and actions in this day and age where where police officers are not to say always held in high regard by the community certain individuals who stand out doing things to the community are then should be document written up because of violations of the actual policies yeah you don't ask that you reverse and re man thank you thank you that concludes court for the day i will reconvene tomorrow morning at nine