and the bright line rule in gross gene to the third prong of the insufficiency pretext test there is no case that we know of that stands for that proposition and this they're also asking this court to rule against i handed the case handed down one month ago and shays your professional that hearsay conversation with merely one person does not satisfy the word employer's obligation for establishing the honest belief doctrine and in this case if you go back to it i believe that the trial court came to the conclusion that the plaintiff satisfied the prime aphasia case and the macdonald burden shifting rule and where the the defendant that proffered a legitimate nondiscriminatory reason for roads terminations i don't think that we have any disagreements with that and the the next its next the burden shifts them to the pla to demonstrate pretext by showing that defendants proctored reasons had no basis in fact so first of all we dispute very much the court's finding that there was no genuine issue of material yes i believe that the court did state that that there was they violated the customer you know never does wrong policy but that's not what happened or are you going to never do are going to understand how we can because we had the court been accepting all this other information i can understand your argument better but it seemed to me that the district court with signing of looked at what mr rhodes said he said that he too did the horn adding several times he said that he asked him three times to move and that then the court found that adequate to be considered arguing with somebody when we don't have to agree on the propriety of the book we just have to take what it said of course however the court may have seen in the deposition but that's not the trust the test is what did the investigation reveal that standard parking performance they never talk to rose as just as an seger they never talked to our supervisor their own employee who was standing ten feet away who witnessed the incident the only person they talked to was a woman another supervisor by the name of rather than who happened to talk to the customer and then read have been told mr newman who was the head of the cleveland standard parking there he was kind of the fact collector they told him and then he told chicago and chicago fired him based on that sequence of events what mr rhodes said never came into play judge it never again never talked to him so to two i don't think the court did rely on that but it was well after the fact that was in the deposition after he was terminated but if he doesn't really it know he he what he stated in this again we believe that there were disputed there was a genuine issue of material fact as to what the basis of this conversation that took place was thirty seconds long he was pulling into a parking lot and the customer wanted to get into that place in almost hit him so he beeped the horn what he described as beep beep only to get his attention sure he wouldn't hit the car even mr richmond testified that mr rhodes came up to him and said will you please move your car because we're getting behind here and he said no and he said well we've got all these cars blocked up here and it's going to cause a problem and he said no and he said look i would consider it a personal favor if you did this and he said what he meant was he's been there a long time when people come in and park their car they sometimes leave for lunch so he sometimes the person comes out to go back out to his car to go to lunch and they say would you hold a parking place so that in the context of a threat the conversation was described by one of their own supervisors the employer supervisor standing ten feet away and she completely disputes the characterization that the appellate made of this conversation with the left that isn't the last thing that she says about it the head and then i apologize to mr rickman you know i was struggling with that because she did say he too did the horn two or three times you asked the question three times you know each time and then i apologize to mr rhythmic as you know help me understand how the fact that she felt she needed to apologize doesn't undercut your a service he apologize but the context of this incident that caused him to be fight was not a violation of their policies he was courteous he was gentlemanly and he did make that statement but then we even move on to the to the third prong the insufficiency test this is probably you know what what what we believe one of the more powerful arguments because we had sworn testimony that there were multiple people who had been discouraged to customers and those people were never terminated and then we had one person who was a supervisor and said you know i took the reports of these people who are who are discouraged so we went to chicago because we wanted to see all these reports about this courteous employees at standard parking of course they mysteriously didn't exist but many respect there was even the one incident where one of the standard parking lot employees got into a physical altercation  with one of their customers the customer then chased them into the into a booth and attendant booth he locked it just in time the customers banging on the booth young adam i'm going to kick your ass but i don't know if that customer was having the usual pleasant experience standard parking experience that they talk about but that customer was moved to another lab and we also talked about that we believe that the isn't shays or there was hearsay and that formed the linchpin of this entire case that a guy by the name of himself whoever he was stated that he wanted r asked her right to get rid of the guy or edit him to get rid of the guy rather than one of the supervisors testified that she talked to him sound and the individual involved with the incident she then testified that she told newman about this conversation that hamsa told her that he didn't want appellant on that last h newman then reported this to the company through the corporation we took a thirty six the position of the corporation and they said well yes but the company one of the company's own employees was told that they that the client wanted them to get rid of that right one of the company's employees he stated to read yes that's correct by the people and by the way they own the garage right you're just managing it they're just managing a standard parking lot is ok you're in the garage ok so the owner of the garage tells his agent of the company told somebody and that person told me she said this person said this to me yes but he for one thing he never even viewed the incident as it occurred but yes she said that he said this and then she went to t understand did he say he didn't say it we don't know if you shot it you will never talk to him it's himself never came into the case it was his on sworn testimony that formed the basis for the for the court my business provides i have a staff they go into the cafeteria that's owned by another company that company calls me and says i do not want these three people there they talk too much and i gotten six complaints my supposed to investigate and then tell this person i'm sorry i don't believe you or do i pull them out because it's their cafeteria judge you have an employee that's been there for many many years you pick up a phone and maybe give them a call but we just say that but for the purposes of the motion for summary judgment for the purposes of the motion for summary judgment you have to have sworn testimony to develop th has to be this that's the sworn testimony comes in the form of the person who said he meaning the client told me that he doesn't want him anymore so either that statement is true or not either her statement that i was told by the client that they don't want him there anymore that's either true or not how do you test that only one way you ask the person if you really said it and you have not done that so we have the only testimony we have is heard saying i was asked to get him off there just this hearsay declarant it once not mr miller's say it doesn't matter whether he really wanted him off or not the out of court statement is i want you to get rid of him the truth of that statement is irrelevant what's relevant is that the client told her that i want him out of there so you're not the person whose credibility admitted purcel mother reason for instance that they really do an investigation but for this piece that statement is the only thing that exists the hearsay statement is the only thing that exists in the record it's the only thing th existed in the record the someone wanted roads off the lot it's the only thing in the records no what you think they could stand for there's no other way that that gets brought into the court except for the truth of the matter immediately sustain the objection depends of what's offered for the truth the better serve it or whether it's offered to prove that it was said i think judge white's point isn't whether or not it's true that he really wanted a lot of the fact that it was communicated that's blatantly false we spoke to mr roach prior to the terminations to hear his side of the story he missed this in his deposition and it's clear that we now spoke to him but we spoke to the customer the client mr rose direct supervisor and the h r department to discuss options for discipline in addition he appoints out a bunch of comparables for the insufficient argument but only three of them are going to fight two of them really richard's are both in the protected class when the rule calls for people outside of the protected class who had engaged in conduct substantially identical to the conduct for which we contain motivated discharge the first two cases did involve customer complaints but again they also had a protected class in addition they did not involve the client the third one latasha jones who is outside the protected class customer complaints but not a client you mean in meaning that the person who actually owns the lot of the client in this case the playoffs square was involved in this dispute whereas in the other situations it simply involved maybe a customer making a complaint about an employee who we may see again or we may not see again also he talks about the honest belief and also he speaks about the honest belief rule and whether it can be imported into the third insufficiency test  from our perspective and i think the court will understand this that the honest belief rule is what the employer contends motivated discharge there one in the same so there's no way to say that there is some difference between the two what the employer contends motivated discharge is also what the employer honestly believes motivated to charge he also said that he was honking the horn because he was going to hit the car this is our very first time hearing this argument from what we know he was hawking the horn to get his attention so that he can move the car from the spot that he wanted to park in for his own convenience indeed he was in one car the customer was another car the customer parked in the vacant spot but the employee he did not want to take the time to wait for another vacant spot to open up he wanted the spot taken by the customer but the customer's always right in these type of situations and the customer believed that spot was vacant he was a monthly parker mr rhodes  knew that he worked for the client he missed this in his deposition and yet and still he first proceeded to argue with the customer another think you mention was the statement i remember that i think all of us know that when someone says to you after a confrontation with that person i'll remember that that is certainly a threat and in fact mr rolls it mitch that it's a threat in his deposition he says when x what does it mean to sour remember that he said if he ever asks me to do something for him i would not do it meaning he's going to treat this particular customer differently than other customers because of this dispute so that was a threat it might not have been a threat of physical harm but it was a threat that he wouldn't do favors for him that he would do for others in the customer and whether human is a threat really is irrelevant the customer himself perceived this statement to be a threat and was angry enough to go to the client the and i think mr rosen self would agree that it was discourteous because he admits that it was not a pleasant confrontation he says that in his deposition it should also be noted that mr rhodes was hired at the age of seventy one he was hired by matthew newman who was the standard parking senior manager and fired approx two i think less than two months later by mr newman the presence of this same actor who was involved in both the herring and the firing and the close proximity between the hiring and firing alone infers a lack of discrimination as found by this court multiple times mr rhodes was not fired because of his age or any other discriminatory reason he was fired for the simple reason that he was involved in a heated customer confrontation in direct violation of stener park his policy that the customer is always right they employ handbook specifically says that this policy must be up even if the employee knows that he is right and failure to abide by this policy may result in immediate termination mr rose was aware of this policy he admitted in his definition in his deposition and he was terminated for failing to abide by we also believe after reading his deposition that he's wasn't even qualified for the position when asked whether he believes in the customers in the past that the customer is always right he said i do not believe in this policy if you don't believe me please speaking on the floor he can he can say to himself i'm going to pretend like you're always right but i don't have to believe you are when you you we do accept that but the problem here is that while there may have been his belief while he hit it maybe that was fine but that belief manifested itself that day when he got into a dispute with mr rose prior to his toleration your position in the position of the district court is that you don't have to prove that it was a real swearing con swearing using swear words or angry confrontation that if you just accept the about whether somebody says somebody swore or not when isn't the the other issues that you're addressing is that your customer was important enough to your customer no matter what your customers think is important enough for your customer to come down to the garage with mr written that didn't talk to management about it that's it that's exactly what we're saying even if you just take mr rhodes version of the events and ignore everything else including the slap that the slap on the hood of the car and the swearing at the customer even if you ignore those things isn't that what the district judge did that is exactly what the did not the facts as testified to by the plaintiff plaintiff can't impeach his that's the end of the case that is that is exactly our position from our standpoint it's undisputed that mr rose was involved in incident and then he admitted that it wasn't pleasant he knew again that the customer was a client i mean the customer an employee of the client he knew about the policy he could to honk his horn demand in the move despite knowing all that i mean everything that the plaintiff emitted to in this case was considered by the court in the court determined that hey look this were business to operate in the service industry if our client tells us or even fart whatever our client said if he gave us the impression that he wanted him gone we couldn't then say we're sorry client i know you want this guy gone but we're going to go ahead and keep him we made the decision that one he by the custom service posse he could be terminated for that alone we don't need the client to tell us to remove him from the line you can beat even that will employee he is an at will you can be capable of getting in a dispute with the customer to the point where the customer felt the need to go to the client to go out of his way go to our client and complain about him there why would we as a company that depends on service take their same employee employment to another lot and maybe get us in trouble with another client we're not in the business of having our clients upset and angry with us our contracts are termed boy we're within thirty days notice these are projects that we depend on and we cannot afford to lose them because we want to just be courteous and move one employee to another lot to hope to give him another chance he had a chance he got into a confrontation he was terminated it's as simple as that in just hypothetically it was really just an innocent exchange and in the customer overreacted you had somebody that agreed with the same things just whatever the customer was i would say saw the customer from our standpoint whether customer overreacted or not is irrelevant if the customer it whatever was said or whatever happened no matter how they try to downplay it whatever was said it made that customer so and this is a monthly part of this is someone who parked there every single day and obviously avoids confrontation this wasn't a person who has submitted fifty complaints you know and he complains about every little thing now this is something someone who was involved in an incident there rose to looks to such a point that he felt the need to go talk to the client and if the client ask us to remove someone we are going to remove them unless he has to remove that person under some of the under some descriptor reason such as we don't like him because he's older we like him because he's of his race or we like or some other district screwed discriminatory reason but if it's based on a legitimate nondiscriminatory reason such as violation of a customer service policy and engaging in a heated conflict with one of their customers then there's going to be a problem and now in this case not only was he a customer but again he was in the employ of the client under those circumstances you're going to get terminated pretty much every time for the questions thank you very much thank you mr girl and you've got five minutes just like th first of all the corporation tossed a five matt newman could not fire him it was the corporation in chicago that terminated him and when you go to the first prong of mcdonnell douglas who replaced the terminated employee was replaced by a person who was outside of the protected class this court developed the gross bright line for that they said you could esta know the person that replaced them in the case is over six years younger than the person they replaced or that's how you get away from the replacement here what the guy was sixty one was any but i mean he really was he wasn't replaced by somebody who was not of the protected class because the person that was replaced was in the protected class so know that he was young enough anyway or that he was he was young then he's placing it over here into the insufficiency pretext test and that's not true we have comparables we have multiple comparables that showed that people were discourteous to customers there were complaints from and those people were not fire multiple cases and not only that your opposing counsel has made a distinction between customers and the client who actually you know to the contra have with standard parking in the give me your best response on that but i can see a different you know i drive in wants to go downtown for something and i'm just a parking customer and the there is a difference but my point with that some south may have made that statement they have parking lots all over cleveland they've taken people in changed them from la to lot on multiple occasions and got them out of there no one knows what himself meant and we believe that that statement and i know that there's some disagreement here but that statement was admitted for the truth of the matter asserted because if not admitted for that there's no other way they come to the conclusion that himself wanted him off the lot and there were two people i go back pulling back to the first prong of this just in pretext it had no basis in fact two out of three people who actually witnessed it supervisor who stood ten feet away and witnessed the entire thing but one your honor sometimes you know when people were in that situation people come forward it's just a matter of maybe good will ok it lasted thirty seconds according to her somewhere around thirty seconds equate she said she came up and apologized that there was any kind of an incident that's true but that doesn't elevate this just some she's just really as the guy was irrational in the way he reacted she didn't say that in her statement but when i took his deposition i could tell you this was one of those people who was an irrational person we could have demonstrated that to a jury very simply and i just want to make sure the judge we talked about the district court my friend relying upon th e depositions but that's not what the mcdonnell douglas test says you rely upon what took place at the time not after the fact and that's why two out of three people stated hey this