ok my name is kevin martin and i represent the appellant in this case mr white and his name is steven white and stephen white very basically he he he worked for he worked for sears  during his thirty's and forty's and management positions who were recruited over to home depot in when he was approximately forty years old he during during his forty's he did well with home  depot he was in charge of a lot of safety things within the store he he had himself he had three workers comp claims and twenty four years he worked for home depot for twenty four years for twenty one years he had absolutely no problems with home depot he received in received incredible reviews he was always a performer and achiever in little or no negative comments about him in during june of two thousand and twelve he he he suffered an accident where what was happening is he was were fired the whole inventory off of pallets that were outside well is happening was home depot was inventorying inventorying goods outside and in a tent and there was weeks on to the you know on to the p up until two months before the accident which was six thousand six hundred and twelve then after the accident he tried he he went to a supervisor and he said i need to do to go to workers comp because i hurt my foot he actually tore a tend foot she said no her name is miss core noddle she said i'm not going to fill out the claim you're not gone so he went to a supervisor the supervisor of course said yes then then he then so he was allowed to go to workers comp he came back he had to put a boot on and and he sat it is there and he had a boot on wasn't allowed to go bold things then another supervisor came up them said you have to go bowl inventory from the back lot again so at that time he went to an assistant store manager who said no you can't do that to the the manager of a miss carmona so he had carmona and cordova cordovan carmona were the two managers then following that period of time he suffered approximately fourteen or fifteen very bad reviews and what are called progressive disciplinary notices those progressive discipline no narry notices went all the way through to two up to forty one of and fifteen in for one of two thousand and fifteen he he received a good review because he went to somebody different or somebody different did the review it said that he that he was he was well position last he had been in that job i understand about four or five years he had negatively progressed from being for no reason and he just he went from being an assistant he eventually became in the then said he when he bought it he and even opened up the box he got a call from there that what's called the associate advice and counsel group at home depot and they said you violated this rule he said all right i'll return it i told him it's two hundred dollars in i he he did not know it was a violation his supervisor at the time didn't know it was a violation but they said it was a major violation and so they but they kept the money and they wouldn't take back the on the open box and it was within a very short period of time the nd thing that we think was protection was the there was an order and the there was an order that they said that he didn't follow up on he did not know about the order because it was concealed from him it was concealed from him and it's admitted it's concealed from him there was a lady named a j smith and she made the order and there was testimony in deposition testimony she made the order and she was told not to tell mr white that there was a problem with the order or even that the order was made and she left no notes about the order in whatever their customer order was obfuscated by two people one was a j smith who was a worker who was told by his supervisor which is a lady that it was his supervisor will come to me i don't want to use of my time looking for it but it was his immediate supervisor and they admitted that she knew about the order and knew about the complaints from the customer on the order and during the whole period of time and and and knew that he didn't know but he more or less should have known and so mr white after twenty four years we believe that was the those two write ups as well as other write up and another thing that is very important to to the pretextual matters is that the two there were two write ups or management notes saying immediately prior like the week before like they were but they never told mr white about these management notes that or so we obtained or we got a witness who isn't what's called  some motion an associate support department supervisor who came in and said that home depot and buy affidavit said depot was doing or creating management notes in order to support disciplinary notices and did two notices which were about they were about four days or both before they received a good review which was on for one hundred and fourteen days before that they had they had these notices out there saying he wasn't following up on these orders but then he has a review on for one so in march he has two bad ones and then but he doesn't know about that in on april  st he has a good review and the good review they don't mention even any of the bad things that he's had and then eight days after he has a good review he's terminated now we think th in that regard because the district court found we believe that there was too much time in between the injury and the terminations but in between the injury and the terminations there were a number of of events that occurred including there he was written up for conduct that he could not have done because he wasn't there so the best argument would be and pretext is looking exactly like you said look at look at what happened he bought a wine cooler he was willing to return it he didn't know that they had some sort of thing where you had to wait twenty four hours he wouldn't even bought it he he i don't know that he said the name of the person specifically who approached him and said you want to buy the  who i can't recall that but i do know that the people that were giving him a hard time were were the people who in each one of these events of cordova you have car  carmona and this other person i can think of a name these people every single time they were they were prodding him or trying to get him to quit they were trying to get him to quit by saying things like you're an old man you are you have a bad back like all old man have you we can replace you with two workers for one because they want people to pull inventory and and and they also raised they also were very personal with him to try to get him to quit he  person but he wasn't he was a very hearty person who had that problem and along with saying he was old his back was broken and all these types of things like that he also was told he was he was told by these same three people and their managers he was i don't think i cited anything that would say that that was only that that was only thing that occurred i know there's there's cases out there like dia's and neumeier and things like that where on one occasion it said and on one occasion it's said only t start with discrimination and this is an age discrimination case that's how it's pled and really the issue is whether mr white was fired because of his age and the evidence in the case demonstrates that w we agree we disagree that there is a prima facie case assuming there is that there certainly was evidence of illegitimate nondiscriminatory reason for terminating mr white's employment the two triggering events were the st was the purchase of the wine cooler which plaintiff needs that he did you admits that it violated policy his claims that he didn't know and certainly ignorance of a policy is no excuse that didn't in of itself lead to his term a nation the next one was his failure to monitor it customer order and remember as a customer order specialist his job the fire him well i don't think there's any evidence of back and i think that too i would respond to the question two ways st whether we might think it's trivial really isn't the issue the bradley case th or the employee might disagree with them really isn't the issue and nd i would say that the nd issue of the failure to monitor of the order really came at the end of a series of warnings and problems in that regard there were many prior incidents on this specific issue we referred to than a few just twenty three to twenty five of our brief that he has consistently in these  reviews being told you're not monitoring orders you're not keeping track in fact the last one which is that the record to eat three of the record which is april two thousand and fifteen review that was going to be an issue or would have been the plaintiff dropped you to find that out in discovery and plaintiff did no discovery in his case so really it's the employer can rely on the reviews and it's determination based on the evidence of pretax there's no evidence that it of that home depot was making this up as a as a as a way to each discriminate against them so nice from your perspective even if said this wasn't the whole purpose of your job but yes you should have caught this you manage people this is something that you get warm for they considered it a minor violation because it didn't relate specifically and overwhelmingly to her job do and so in fact in their in the record it's at volume two to sixty one where she's accused or she's charged with violating the customer standard operating procedures whereas mr white was it was a major work violation because it involved his job responsibilities so from home depot standpoint miss donna as failure was kind of an overarching failure to manage customer service whereas with mr white this is your job this is your responsibility to make sure this happens and you didn't do it and that's why they were treated differently as opposed to between a major minor violation and then it wasn't just this one violation i mean that's the thing that this was a continuing problem breaks the camel's back with the combination of violation well i think that there are the record shows that certainly in the by annual reviews he was being told that the progressive discipline notices it's it's you know kind of generally and being advised about his or performance in this area and then i would just like to switch to this issue that we you know we have that there still has to be evidence of age  animists the question is not simply was this a good reason the question is whether it's legitimate nondiscriminatory reason which was and then well is a protection for for each discrimination was the substantial motivating uncorroborated allegations from ms martin l paul martin's declaration that there was some kind of conspiracy to write people up she could she claims in her declaration that  also conceded that she couldn't there's no evidence that she knew why people were terminated she says well there was a trend of older people but home depot's a pretty big company and a trend of older people is pretty meaningless as far as the physical analysis so ms martin's declaration really doesn't show specific and substantial evidence of age discrimination similarly the declarations of other people who are older who they who were terminated several of them don't even say they were wrongfully terminated some people say they were wrongfully terminated but they provide no context we don't know if what they did why they were terminated the basis of the termination the mere fact that  five or six people in a company of thousands was to were terminated holder is certainly not under the monday or portage or put in your cases evidence of each discrimination with regard to the or harassment in the nits case and the next big case this court rejected things like old timers wouldn't know how to kowtow to the manager or we don't like gray hair that simply isn't enough so we think that the age germination claims and the last one claims are just without merit similarly with the retaliation claim there is no retaliation claim here again it's the same analysis no evidence of a retaliate mess there's no question mr whyte engaged in the wrongdoing that led to his terminations the trial court correctly found that there was really no complaint of discrimination so there was no protected activity and then just that he did not work off kwok and and so that basically ends that and then i would just end by saying that mr mergers argument seems to indicate that some kind of  retaliation for filing worker's comp claim such a claim would not be appropriate you can bring claims for facts perhaps underlying that but not for filing a workers comp claim that's a one hundred and thirty two a claim under the labor evidence of each woman asian there's no evidence retaliation no evidence of a wage claim and that the court should affirm the trial court's decision granting summary judgment to home  thirty minutes to be let out of the store and is that necessarily not i mean he's not treated nice well he says that he he says that he had to wait in line before being released anywhere from fifteen to thirty minutes to three times with twenty three times a week that's all he said is we don't know whether in fact he even punched out at that point because he says only that he had to stay you know he was done and then he had to wait thirty minutes or fifteen minutes but we don't know is whether he punched out we don't know what any anything other than that specific fact he was full weight and we do know that he testified in his deposition that he never work off the clock and still but i thought he specifically said that after clocking out he had to wait twenty to thirty minutes to be let out i think w think that in his deposition he said that he had to wait before being released but if if even if that's what he sad it's not clear exactly what was going on there and that certainly wasn't developed and when somebody testifies under oath that they did not work off the clock they can't change that subsequently in a day in a declaration to say that oh well but i didn't really mean that i meant that i had to stay there or something like that i mean there it could very well be that you could have left you could you know the problem with declarations that contradict depositions is that you can't cross examine the person on that and that's controlled by a simpler nobody from home depot has come forward and said that didn't occur it was he had to stay at the store two or three times a week for two thousand and thirty minutes afterwards he couldn't even get out of the store in case they needed him to work extra hours at the store then on the way home because he was a customer order specialist he had to stop by job sites the make sure there were no complaints again uncontested also i think it's really important the context of this order is a summary judgment motion all the facts where where counsel says there this is undisputed or nobody has said this that or the other thing well mr white house will test these things mr and the contesting of a creates a tribal issue of fact that must be considered in the light most favorable to to mr white it's really important also very good point on on more and more  donna and thank you for reminding me i'm bad on two st names or more and donna was the supervisor who who hid from mr white the fact that there was an order outstanding and again nobody from home depot  said no that wasn't true we didn't hide it we didn't put notes on the file they just say there's absolute immunity or absolute liability for mr white if he doesn't find out about an order that's being hidden from h