the st was that she was terminated in violation of title seven because she was treated in a disparate manner from male coworkers she also brought a state law claim under kansas law  her terminations was in violation of kansas public policy what i'd like to do is start out just talking about the pretext issue because judge so the whole case at this point depends on the pretext issue and whether there is evidence that her terminations was pretext for discrimination and we believe that there is a lot of that evidence in this case showing disparate treatment and that her terminations was create tax for discrimination the st thing i'd like to address is the primary employee who she is compared with this cage because that demonstrates that she was treated differently than he was the person you need to look at is he used the same art language she did in front of everybody all the time well st she disappeared choosing that language all the time that was disputed by her secondly even if she did on occasion use foul language the evidence was at mr lopez is just as much foul language and  that's consistent with the fact that he got the company sued twice so d to say that jill was the only one in the company using bad language is a misstatement of the record th behavior now but even if you don't consider the fact you're on or that they settled cases it's also on contradicted they he was written up and had to watch videos for sexual harassment so even if you don't consider the fact that there were other claims brought against the company there is evidence that he was disciplined for sexual harassment he wasn't shy there and she her was you know there's no evidence of that no more no we're not alleging a hostile work environment your honor she's not what she's alleging is that she was terminated for a reason that when you compare how other male coworkers retreated she was not treated in the same standard to male coworkers were held to the male coworkers would get physical with subordinates we've got evidence that new car manager slapped a sales representatives how well let me back up because i want to go through each of the elements what i think shows the fact that there was a pretext st off jill had only worked there six months and when she was terminated by the th month the general manager admitting that she was outperforming mr lopez and every single statistical category  her over the people they're still working there and that's our position is that this is a fact issues that should be determined by a jury not a legal issue if a jury can believe one person over three others as the court knows and jill as strongly denied that she acted in this manner and if she really did act bad your honor the judge kelly's quoting from an e mail one of the primary reasons we're here and and you're not disputing that she used the language in the mail now what are you saying that we're saying is that the men were doing the same thing and get the question help i think maybe we should frame this in terms of your argument about mr lopez being similarly situated how was he similarly situated to your client in terms of the basis on which the employer states that she was terminated are they similarly situated because they the evidence is that jill was fired for basically usually either using inappropriate language or being disruptive and the st thing i want to point out is she denies that second testifies that mr lopez she was just as bad language and was derogatory about women that's the nd thing the rd thing is jill was never ever written there is not one disciplinary record in the file whereas mr lopez was written up for sexual harassment and forced to take videos and so basically mr lopez and jill performed very similar behaviors mr lopez gets written up and watches some video in jail gets fired and then the cherry on top is mr lopez gets jill's job that in our view is evidence of disparate treatment you it's disingenuous for conklin cars to argue that jill was the only one in that workplace that ever used foul language it's disputed factually and common sense tells you that that's not what happened and if she was behaving so badly why didn't they write her up they're not saying they were her up or fired or for being disruptive the evidence actually was is that after she sent that e mail which she made concerns about the kansas wage payment after she did reference abduction aid concerns about whether some of her subordinates were being properly paid her supervisor as the others you're talking about yes they were both supervised directly by gerard spence and if you read the record mr drew out at the time at the time that mr lopez was that made the decision to fire her he and his deposition indicates it had more to do with that she put something on facebook about looking does anyone hiring if you read the deposition transcript he really the male employees were treated when they did similar kind a the whole issue here your honor is that there was one standard for the mayo employees that were managers could basically commit a battery on a coworker they could get disciplined for sexual harassment and they could curse and make disparaging comments about women and the only discipline that's in the record is mr employees were not getting paid properly and she gets fired without even getting a warning she didn't get the option of watching some then that is classical disparate treatment in our belief it's example of holding one standard for women in the workplace and a separate standard for men in cars was the epitome if you look at the record of the good old boys club if you look at the statistical information of how few female employees they had an ada that small number were glorified waitresses that brought coffee to customers while their wait in the waiting room there was a very small number of women in this workplace my argument my point is is that there is enough here that jill ah to have a right to present it to a jury and lead a jury decide whether they believe her about properly at certainly could be an outcome but we also believe there's enough evidence here and the whole record that a jury could look at this and say yeah she she was held to a little different standard and i think again the cherry on top you and a good old boys club that what we know that exists in the workplace unfortunately and based on that we would respectfully request that you reverse the decision and let a jury decide who's telling the truth in this case and who's not not based set on a cold record thank you difficulty plaintiffs have when the legitimate nondiscriminatory reasons are true and in this case the legitimate nondiscriminatory or asians are clearly true what do we do but the fact she denies it she used bad language well that the question isn't whether she denies it the question is whether a is whether a reasonable employer would believe that and this court has given discretion to employers in that context and they ate it has to be at nestle summary judgment evidence to form the basis of the decision and in this case number one a reasonable employer could conclude that based on the several instances of her misconduct  abusive language profane language and the kinds of things she said to disrupt the work workplace it still lead to the argument that ok she comes as an issue in the question of rebutting the pretext and what the plan of has to show in that situation is that it is unworthy of belief and in terms of what they have generally put up with the court generally looks at it's the did they deviate from the policy is the reason advanced that's legitimate nondiscriminatory untrue or is there some so rt of practice that was bought that not by a lated but a practice that the employer stepped out of in order to make the decision and in this case none of some similarity between the parties and lopez was a to quote the court earlier a buddy of the plane appear recommended her for  not comparable is that that's what you need to discuss that the two sexual harassment cases which mr michael handle art are cases in which he was reprimanded and he and they both came at the same time he was reprimanded he was put on a plan of action and the testimony in the record is that he improved his comment that one was a sexual situation wasn't in the other was sending pictures sure or teach other i think he received pictures from somebody and those were on his phone that's what's in this record  rest of that is theirs and there's nothing else in the record as far as those other two sexual harassment cases other than he was reprimanded it was written up he was put on a plan of action and he improved his performance on the other hand the plaintiff was there for six months and she engaged in the conduct that we've already kind of talked about where she fired an employee that she didn't have authority to fire she kept telling employees in the finance department with the finance director setting there that the finance department was slow as an alpha and used the word she was complain to by one of her subordinates and she called him a crybaby and then she was reprimanded for swearing but continued anyway she was reprimanded  pretext the issue of whether a non comparable was written up to a comparable to a to the point of i would suggest that the issue of the right up when it's not a violation of the company's policy on disciplining is not a distinction that's going to cause a jury trial the fact that he was written up is  doesn't one same seem marguerite just on the other and yet she gets the more severe discipline i disagree on and respect that they are comparable given the different circumstances i thought and but i need some help on that on how similarly situated and copper building works in this context that let me let me help you with what my thought is and that is that the comparability is determined by the record and you can't look at the fact that he it was alleged that he committed an act of sexual harassment on two occasions and from that come to the conclusion that there was some sort of horrible conduct on his part or egregious conduct or percolation back sion it's not in the record the only thing in the record as we applied is the fact that he was charged with sexual harassment and the case was settled up with confidentiality provision if that creates a comparable situation in this case it's going to create a comparable situation in a lot written but she was told this is unacceptable behavior and it continues your honor probably won't come as any surprise to you that i'm actually arguing both i'm arguing st that they're not comparable based on the record and if they if they are the in comparability as is shown by the fact that he a reformed oh so then the question becomes what did they have to show as part of that that is unworthy of believe and they could show that they so say you're not arguing that discipline she received was comparable know well i'm i am saying that they are not comparable but if you look at the discipline that each received she was recommended or gerald smith agreed and they hired her she worked for six months and her conduct that we've discussed all happened in a six month period that my question my question was what was he told her conduct was  gerald smith told her what were the circumstances and his testimony on two or three different occasions he told her her conduct was bad and she obviously knew her conduct was bad and she was in job trouble because she posed in an e mail the question who is hiring it's tough to work with lazy people if her after she posted that she she wouldn't do it she was not comparable to mr lopez and even if she was in terms of what action was taken it wasn't a violation of the company it's the circumstances of their position and looking at it more than just the more than just the conduct but in terms of their conduct as we discussed with regard to what's in the record we can conclude they are not comparable based on the conduct that is described in the r circumstances gerald smith took mr lopez a suggestion and hired her and gerald smith herminator to her six months later and i think that the plaintiff is going to have a hard time in overcoming and has obviously in the record had difficulty in overcoming that inference which i think is somewhere between an  a presumption and i would suggest to you that that is reason alone to not disturb the court's lower court's brand of summary judgment i think i've covered everything i wanted to cover thank you for your time reputation for vulgar comments about women and cussing and when you talk about the reasonable employer issue judge hearts gerard smith was the actor employer making the decisions and in these decisions the final thing i'd like to say is mr lopez some did and his testimony he said jill's personality is a lot like his and if that doesn't show request that the court reversed the district court thank you counsel