repeated racial comments doing it time and again that is what the personnel manager clients witnesses telling them we took the depositions of the witnesses and they said they did not they told according concerns the racial comment that she made it's own page six hundred six of the record it's regular church to have a tang and he's telling this pair of you committed what she has just done to him right before he went on medical leave i think it's important to say in mind that he went out on medical leave in january fifteen right after this racial comments by me is using and he wasn't there and i pulled when all these termination ewing get up there and said there are no good white man they ain't never made a good white man wasn't never going to be a good wine and then he says that's a misprint this is a type that says black is sex t described in a deposition he get into that at the hearing but in the deposition on page five sixty three of the record it is deposition pages eighty nine and many where he said he reported to management gaz one was david hancock and employee is is not being treated the same as a black employee he's doing much worse things making the decisions and he says he says actually what that meant was on page five ninety eight we had a zero tolerance in this case because management was involved that is that mr ragab the poor manager wasn't actually the main one using those racial epithets but then he said that also apply to holland he was not a who was not in management but then on six hundred we asked him how does is there on tolerance a plot of blacks and he says well we would have to examine the let me go back to and the reason i think this sort of this period the thing is so important this is before the lawyers ever get involved so it's like we were just talking with these people about what they saw what their impressions are of what was going is running the show he starts it out and the tales of what's going on and it's also obvious from it that mist of a gas at this point when they're having this thing doesn't even know exactly what the charges he is he just says he's heard rumors confirmed of her name was dixon zero point seven zero eight of a deposition said all we had was a piper that they gave us you know that we didn't is not that they saw the witnesses we had the piper that they gave us saying that during that period so i went on what i'm ten years mr mr cherry a jury could raise me and further mr cherry has these group of four black player the members there and he's trying to make them believe that this corroborated statements of racial  just make up something you say if he did make it and they agree yeah that's right he would but he's sitting right there during the deposition and he has the power of hiring and firing so we have to take the first version of it which is it was just this  morning may please the court my name is kim hodges and i represent the employee in this matter in t d consumer group we are asking this court to affirm the decision of the district court careening summary judgment in today's favor because the district court correctly concluded that mr best failed entirely to produce evidence of similarly situated employees outside of his protected class who were treated more favorably under nearly identical circumstances it both the and the pretext stages of the mcdonnell douglas analysis because the district court also found that mr best ultimately was able to state a promise facia case on another basis based on his denial of the work roll violation it makes sense in this case to begin our analysis of comparatives at the pretext stage however it's worth noting that mr best did not even produce sufficient evidence of similarly situated employees to satisfy the less rigorous standard pardon and we ultimately disagree that the district it with the district courts finding that his burden that he was able to meet the promise facial burden simply by denying that he violated a workable mr best is only evidence a pretext is offered through his through his purported compared or evidence at the outset it's important to note that a plane of when using compared or evidence is more stringent the pretext stage and it's also to him important to know why that is treatment case intentional discrimination in an intentional discrimination case the plaintiff it all times has the burden of showing that there was a discriminatory motive for the alleged action of course the mcdonnell douglas framework gives us the name of donald douglas gives us the framework for analyzing this that the summary judgment stage and that framework is always directed at determining whether there is sufficient proof that the decision maker in the plaintiff's case had an actual intent to discriminate so it's against this backdrop that the pretext analysis looks that compared or evidence and this is the reason that it matters whether the comparative compared her circumstances are nearly identical for example mr vest is presented argument that in general african american employees who used racial epithets were not it's undisputed that not only were those were those examples of racial epithets not the ported to management more importantly it's undisputed that the decision maker mr bess's case mr cherry had no knowledge about about  those allegations that's important because mr cherry here is the alleged wrongdoer he's the person in whose mind mr best must put in a discriminatory motive allegations of comparable employees who engaged in conduct who engaged in this conduct that cherry knew nothing about serves no purpose and tells us nothing about whether his stated reason for the terminations for mr best terminations is in fact a pretext for race discrimination cherry had never heard of this come in at the time that he made the decision to terminate and it didn't that's the focus point when mr cherry makes the decision to terminate what is the knowledge that he has the first time that it came up was in the employee peer review board when mr vest was using it as an example this is this is shown in the transcript of the employee where people were hearing this mr bliss is using it as an example as to why some of the employees who complained against him might have had a motive to it might have something against him so if we're looking at if we're looking to decide whether intentional discrimination occurred we're looking at what mr cherry do with the time that in terminated him and at the time that epithets in the workplace he investigated that point he not just once but twice when after mr cherry spoke with mr best to relate the allegations mr best required further investigation request for their investigation which mr cherry did so at mr best his request mr cherry went back and spoke to other employees he asked his employee relations manager to go behind him but the woman named just a paper to go behind him and also confirm that the statements he received from the witnesses were correct and accurate and at the end of both of these investigations at the time that he's making the decision to whether or not to terminate mr best mr cherry knows that he has allegations of multiple uses of racial epithets by mr bass those allegations have been corroborated by the witnesses that that he interviewed on some some of whom he interview twice he knew that mr vest was not just an employee he was the lead person in the welch shop and it's undisputed in this case that when someone in t d is in a leader supervisory role the expectations of conduct are higher mr vest admits that himself and his deposition and mr cherry mr cherry knew that after both of these investigations that the evidence he had gathered showed that mr vast had on up let use racial epithets in the workplace based on that and based on the fact that that mr cherry's view in two d has no tolerance particularly in the case of supervisors for the use of racial epithets in the workplace we terminated them that's the relevant inquiry what mr way to mr besser asking this court to do is to ignore all of that and let a jury examine whether mr bess's version of events now and is the same as the employee's version of events at the time they told mr mr cherry ultimately that's irrelevant it doesn't matter what the employees say whether what the employees told mr cherry was true if mr cherry had a reasonable basis for believing that it was and he did that's the incorrect because we're here because it is an intentional discrimination case mr cherry did everything he could do to do a thorough investigation and to determine  that that the evidence he had was not only was not only reasonable but that it was corroborated he did a second investigation that's the knowledge in his mind at the time that he makes the decision to terminate mr cherry and that's really the only knowledge relevant and an intentional discrimination case for similar reasons in order for order for compared to be nearly identical the employees the employees need to have been similar with and with respect to the employer's expectations of him it's mr way to mr bess's interpretation of the similarly situated standard in the briefing dilutes the inquiry to the point that it completely used loses its usefulness in a summary judgment context if we're looking to determine what the what the ultimate question is the ultimate question of whether intentional the scrimmage discrimination occurred then again the only thing that matters is  if the decision maker in the final analysis mr cherry what he knew and what was in his mind so employees who were not in the same position who did not have the same expectations who committed conduct that mr cherry knew nothing about who committed who committed conduct during games and conduct that isn't comparable to the same offense that mr best was accused of none of that matters none of that weighs in is useful in the analysis of whether all timidly intentional discrimination occurred because none of it adds any value to the question of whether mr vest had a racial had a racial motivation as you say whether mr cherry had a racial motivation mr cherry has to compare the  employees based on the information that he has at the time that he makes the decision i understand that mr best would like us to look at the employee review board and to look at that statements that are made during the employee review board but it's critical to know that at that point the decision to terminate has already been made mr cherry's already made his decision so if he was going to have a racial motive but he doesn't have the ability to go behind the employee peer review board and say oh no no just because you didn't agree with me  he's still terminated he doesn't that's not the way the peer peer review board operates the only thing he can do is make his decision at the time in place that it matters and that's where the inquiry of whether intentional discrimination occurred happen that's why in the in the mcdonnell douglas framework the pretext analysis is so important and that's why it's so important that if you're using comparative urse that they are similarly situated it in nearly identical circumstances if for example mr vest were weighing two completely different employers who reported to them soon strike that if this if this court were weighing two completely different police who had engaged in different conduct under different supervisors these are two different decision  makeup of the employee peer review board these are non management employees with the exception of one and this is just a system through which the employees can decide if they think that the ultimate decision is i had no authority to determine i know no they did not go she wasn't before them so it wasn't a review could have said well because you didn't have the discipline issuing that i guess that there's no evidence that they knew part of that exactly what exactly are so that so that information was before them and to the extent it's relevant if if you look at the actual transcript that mr wade's referring to the context in which this comes out is not mr vest complaining here a situation where and where african american woman used a racial epithet against me the context that it's the context in which it comes out is this is in his discussion of why other employees might have had something against him so he's in other words trying to call into question perhaps some of the statements that were made but it's not it's not if he's not saying here's something called i don't think ultimately that matters because it wasn't before the employee review board the employee review board was simply examining the question of whether mr best mr best his terminations was appropriate so again mister mr bess's use of compared to others who are in a lower lower position than him who didn't have who didn't have the expectation of leadership and the expectations  that that an employer gives to a to a higher level employee are going to be comparable simply because bit the standard of conduct expected of them is lower i don't i used to work for employer that had the expression the higher the ladder the closer to the door and that's really the concept that is a play here anytime there is undisputed mr best self admits that as a lead person in his deposition that is a leap person and there was an expectation that that he had a higher standard of conduct than the people that he supervised that includes misusing that includes tommy white who was an other african american employee who was accused of having a racial epithet by mr best again mr cherry had no knowledge of that one and includes the other examples that mr bass brings up in his briefing and of people who are allegedly compared comparable and again all of this all of this is  is an interesting academic exercise except for the fact that mr cherry had no knowledge of any of them all this matters the pinpoint in time that the pretext analysis occurs is at the time that mr cherry makes the decision to terminate him and at that point in time we look at what knowledge he had we look at whether he had a reasonable basis to conclude that that the the statement credible and we look at whether we look at it whether his ultimate decision was a reasonable one so again mr best his argument is effectively asking the court to ignore the requirement that compares be nearly identical and simply just let a jury decide if race was a motivating factor this analysis dilutes the comparability an analysis to the point that it would lose its usefulness in determining whether intent and to discrimination occurred at the summary judgment state gives important note in this case that mr best is only evidence a pretext is through the use of comparative urse summary judgment as a course of recognised across the country is the put up or shut up case if he had is this you put up or shut up point in any any piece of litigation if mr best had other evidence that race was a was any sort of a motivation in his terminations then he should have brought it forward of the summary judgment stage he didn't he relied soley on  on comparability evidence and as in because none of the the alleged compares are truly comparable he's not able to meet his summary judgment burden he's not able to demonstrate there's pretext and summary judgment in this case was the the voting is done by secret ballot and so just through the voting the voting he was his was reduced to a three day suspension and then returned the reason for that the reasoning behind that the employee review board used is not reflecting the record there's you know when you look at the the entire body of evidence that m t v is able to present in opposition to a pretext conclusion and you were in you view it through mr cherry's investigation and the reason most of his conclusion the fact that mr best was ultimately replace by caucasian employee and the fact that mr vaz has absolutely no other evidence of anything that would call into question the motivation of his of his determination or anything that would that  itself towards a conclusion that that race was a motivating factor in his terminations than the district court's decision was proper so much the court has any other questions and then i will will again ask the court to affirm the district a parent from the peer review when this employee is pointing out and i'm reading here from the peer review on page six seventy one this is important dixon she's talking about where she got her information she said he's written you know now she's referring to ch that she did say that he wrote you a paper he said you don't say it one ten you say it all the time and then a few times down there's some back and forth and then cherry tails her who's talking to this peer review committe the jury could ban it he was not acting in good faith that he was misleading the period but what and of course it's not to light the peer review board according to them as the final decision but when the person i am he in at least at least one maybe two other members of second he testimony as i went on to rick was he reported that incident to management to hancock who say that's a racial slur so i think it's in the record that that was done as far as they know what about the earlier sexual harassment he gave a right up to the line of course they knew that it sat in the record i believe it's on page three four to take he gave her a verbal warning of a sexual harassment but so he didn't of other thing i want to say on it we have  people's paints down as what i heard you say and that's why i was wondering why you were giving us the information about the sexual harassment pieces because i thought that you know it was a racial thing but by i guess more to the point on changing ok that was just an information question for me because you continued to kind of intersperse it within your other argument about you know what she had allegedly done bisa be other people and so forth so i just want