the about us it's now fourteen years ago john george filed a discrimination case against youngstown state university was not a garden variety discrimination case he was up for tenure at the time there was at and and he deserved it he had done a good job  a dean had decided that his position should be given to an undergraduate who was his student and friend and african professors available in the university to assess that was john george asked for such a position and it was granted they said you deserved tenure still that a president of the time refused to give him ten race discriminate ask correct ron not ok those are the two grounds yes and i want to and then there was a settlement and i did write we actually know what the facts are you know the facts ok it's a very significant case that the party settled in february of twenty year wait a dean named martin abraham who had succeeded the dean who wanted an undergraduate to have this tenure position she had been demoted and then left on disability he was her friend he had been her student at the rensselaer polytechnic institute he was charged with that minister in the settlement which went on until tw has health benefits or whatever the benefits went with the settlement and right after their obligation that he's he's terminated that that is correct griffin that three weeks later as soon as the benefits and of course maker for term positions and john martin abraham gratuitously said our obligations for reinstatement to john george was clear was john george because he's the only reinstatement person are finished now ok very much like the terry case in the circuit where there was one out of seven educators i believe who were  let go and there was a mention of his health not of his protected litigation and reinstatement status but of the health this is they say they're no discriminatory reason and logic rates i'm sorry that the budget restraints are the nondiscriminatory reason that led to his termination yes your honor i mean that's that's of that's a valid nondiscriminatory reason why what did you do to show that that was pretextual many many things that ok they said that it was they've stood to lose but tween one in ten one million dollars we showed that at six circuit look beyond that in the libby owens ford case when eleven people out of four hundred were rift if you will this is basically the same percentage there revenues were were stable there was no asking the dean to for example identify positions which were  duplicative at the argument that he was teaching the intro level classes and that's the easiest substitute non tenure person to teach those kind of classes of adjunct or so they re advertised the job with a different name same job lecturer school of technology they even advertised it as a tenure track position they knew what was going on was that there was a failure in terms or a decline in terms of of retention and state and success of the students so they were going to advertise the job again and they did and we're talking about that's one of the decisions that we're talking about your honor that's one of the later decisions i understand or care about the decision not to rehire him the argument was you have this terrible financial problem and that the way to deal with it was somebody who's teach intro level classes well they say well later on that didn't turn out to be the case but that doesn't go to whether it was was the reason the  place st of all john george is also an expert in fluid dynamics they didn't let him teach those courses he tried to teach those courses in addition the there was pretext in the sense taught design in manufacturing and their work term faculty who were available who were teaching his courses when he left they w professor provost abraham said contrary to his evaluations in the past both of john george and of the replacement  george go so yes there was other pretext information the statement that with regard to teaching the the developmental courses which are within the mission of the university very critical that somehow that this is easier to replace that's just a subjective statement it's a fact maybe i mean it's got to it's an issue of fact you're arguing there's genuine serial facts right targeted him or whether these reasons really or reasons but we can't say as a matter of law that it wasn't protection that there's enough there's enough there for  a jury should say yeah are you familiar with this some published case in alberta a verse columnist township which i have i have read that k c s so do you distinguish a lot of language that kind of cuts against her position well i think  basically there is not as much clear pretext in alberta eighty and i would suggest that that the dissent in that case is more in keeping with reeves versus sanderson plumbing which is the law of the land this united states supreme court precedent and many of your cases i would say or i think that case thanks saying i don't it's not wrong you decide i'm not it's wrong i'm saying that i don't agree with the way i don't agree with that there's there's much more pretext in this case and i can give you a litany of it i can keep going with it that didn't exist in alberta but i bertie i think that this court's went beyond reeves into a pretext plus analysis which this court has rejected again and again so i would say there are decisions of this court like ross versus campbell soup for example where you have not had pretext plus you have said we will he we will add here closely to the reeves guidelines so that would be my answer ok now there was as i said there was much pretext evidence that the court failed to decision to consider  that was not true two resigned one was disciplined for sexual harassment another had a green card problem and had to leave so he did not non ren the faculty these then there's the district court in youngstown try to articulate go beyond what this court has done and articulate one would be off that that is in sharp distinction with a number of your cases including sharp versus aker and during the time when john george was there she refused to to look at the context there was consistent pretext i'm sorry there was consistent disparate treatment and isolation of john george he was not permitted to serve on search on search committees he was not allowed to be in a creditor which is things he had done successfully before he was not allowed to teach in thermal fluids and fluid dynamics even if it was frequently he was not treated equally and this is the continuation of writing it and it happened throughout the time that that during his reinstatement period martin abraham knew people didn't like that he was reinstated that he came back this was brought to his attention and he said in his deposition now i was aware that there was this consent discontent amongst the faculty which of course he's the head of is the provost so this is a very different case than a standard pretext case where  there's no context evidence there were concerns contrivance throughout this case pre selection pre selection isn't enough to go beyond reads you have said that you have said that in goose tree and i forget the name of the i can find the other cases where you have said that that's enough you're in the protected class and there's evidence of pre selection we have two jobs where there's clear pre selection and he was qualified that's the law of the case that's what the judge said but there was pre selection he made out the prime official case in any event this is this is a case that cries out for a trial thank you thank you good morning may please the court drew pearson on behalf of the apple e's in this matter your honors john george alleges for adverse actions in this case one of which is his non renewal which is the primary focus of what you just heard the district court properly determined that dr george was unable to establish the th problem of his promise fisher case with respect to the non renewal of his term faculty position that being a causal connection this is the unusual case in which ten years passed between dr george's last instance of protected activity which was suing the university back in two thousand and six and his non renewal in april of tw recognized by the district court this circuit held in for versus hazel park any lack of temporal proximity alone can be fatal to real proximities that within thirty days after their obligation of the settlement agreement expires i mean you have i mean to me you get temporal proximity because they acted right after they no longer had a obligation to and the i mean the obligation started ten years before that but it continued for ten years and as soon as that expired thingo he's gone i mean i i mean to me you've got to proximity i would respectfully disagree with that is ok for a couple reasons one is that the entire focus of this and they still had to pay him his benefits right until thirty dollars days after they terminate thirty days after their obligation to pay benefits that was always there was already baked into the a settlement agreement he had to receive health insurance part and parcel of the settlement agreement and as soon as the terms of the subtle and agreement have expired within thirty days they fire and you know that's i think that's what the temporal proximity is but he was guaranteed that health insurance until his th birthday which was the beginning of april he was going to give the whole matter what if he was fired before then he was going to get the health insurance if you fired it the idea is they could hire someone out if they had to hire someone else to replace him they'd be paying two sets of exactly right  and fifteen health insurance expiration is of no moment in my opinion in this case because there are contractually obligated to i think your argument there better or well i mean i wonder what other arguments  problem with the argument is that while he was employed they were getting something from him they have a spot that was being field and they have the plaintiff working in that spot so  proper fish case behind us and conceding for the sake of argument that he establishes that budgetary reasons as we know from the already case are extremely strong is even extremely strong legitimate business reasons to terminate an employee so you say this is a reduction  know i've never used that term that was ok well i mean that we have different standards for reduction of force so we're not we're not we're not dealing with that we're just dealing with the nondiscriminatory reason which is financial it's all  right we still determine whether is a genuine issue of material fact that only that's correct but what albert he says is that you cannot pick at the edges of a of a budgetary reason he have to indicate that there is no budget concern that's what plain the plain holding of albert is that you cannot carry around budgetary concern then they can discriminate against him because of the retaliate against him because of his his suit no your honor it is the pretext analysis  is that the plaintiff as we know from the urban shifting paradigm let's say established this is probably face a case now burton comes to me my legitimate business reason is budgetary constraints goes back to the plaintiff to demonstrate that that's a pretext for in this case retaliation so it has to demonstrate not that pick at the edges of the budget whether or not the stim college in particular was doing well it wasn't whether it wasn't doing well whether attendance or  was on the rise what he has to demonstrate is that there were no budgetary concerns that's what albert he stands for and what we have here is a ten million dollars budget crisis that had to be closed that gap had to be closed over two years even if he can't step can't disprove their budgetary concerns if they can prove that they targeted him because of his prior lawsuit that that was the real reason he prevails anyway doesn't he even though there were legitimate budget conservative west demonstrate you know that's when the man's or factors kick in and he has to demonstrate that it was a smokescreen or subterfuge for retaliation that's his bir be gaps close the gap over a course of two years that's numerous individuals testified to that was the number and that was the two year time frame in which the gap had to be closed that's was testified to by any number of administrator i john george was selected is that to an earlier question he largely taught introductory remedial courses and the fact that the claim that he was forced to teach those courses is simply untrue i asked dr george in his deposition if he was ok with teaching those courses and he said his quote was i was more than ok with teaching those courses he wanted to teach those courses that is where his area was when he returned in two thousand and eight to the university he taught in that area by his choice he wanted to work in that area so to get the assertion that he did not want to teach in that area is simply untrue by virtue of his own testimony  he was easily replaceable if you take introductory remedial courses that's not an issue of fact everyone testified to this abraham they all testified that it's also fairly common sense i would say that if someone's teaching introductory early introductory mathematics course your pool of candidates to teach that course is exponentially larger than if you let someone go that's teaching a high level thermal dynamics course your pool of potential adjunct professor to teach high level courses is obviously much smaller than teaching entry level courses who are the how to level people who would have had to have been live go if they had held on to george well the problem when we talk about in teaching different courses to their compounds this is pursuant to the collective bargaining in place for the faculty they're allowed to take up a three year unpaid leave of absence and that's what happened while taking all that into account who were the people i'm sorry  well i mean if if if if keeping him in place would have meant the more difficult people to replace would have had to been let go who were the more difficult people who would have needed to be the go difficult to replace the person that was returning it was brian burke sonuvabitch that's what i was alluding to earlier he was on a three year leave of absence what we what we have here is the individuals that are teaching more special i thought in the sky over he obviously he has dropper texan they cannot let him go they can only let go term faculty members so there's any number of individuals that are teaching the higher level level courses that are tenured such as mr bucks on a bench  concerned he was he was term or he was tenured he was term he was a term that's what that's what i think judge plays ask so why why why was was he was easily replaceable and i'm not trying to denigrate his credentials he that's just a matter of fact and he's also the most beloved teachers are the ones who teach that might be true as well but that was the reason as of course he claims that he was much of that was a result of bad feelings toward him as a result of the prior lawsuit that was so i'm not for him and there was evidence this offer their support of that and of course your has counter arguments to those arguments this point is there seems to be a lot of disputed material facts involved and in the entire loss of your honor i d dr george for a very long time he never indicated to me that he desired to teach upper level courses or more highly advanced courses to ask sir i believe my dad i really do because i wanted to know if he was comfortable that he is shaking his head anyway i'm sure that argument was not that that argument was not developed the discovery phase and then we get to summary judgment then all of a sudden he says he wants to teach these higher level courses that's not what he if we may putting that the non renewal aside because there's a couple other members actions i'd like to get to he applied for the director of dual enrollment and student support services that position largely dealt with supervising high school math teachers who were teaching college courses for college credit and also supervising the mathematics assistant center at why a c e o he was not qualified for this particular job he applied for by virtue of the fact he did not possess a master's degree in mathematics all three search committee members testified on equivocally that they looked at his application and saw that he did not possess the master's in mathematics and that was the end of the analysis for them for those particular positions are to imagine that they couldn't they got around that given that he had a ph d maybe not directly a located kinds of expertise and master's degrees so that so that it then becomes a factual issue whether that was sufficient no your honor the chair of the department was tom wakefield and he happened to be the chair of that particular search committee universities are very particular about their academic credentials a master's in math is a master's in math there's no because had a written requirement or it was just what the three members want to know it was a requirement in the job posting considered because he didn't have them last so i mean the you have to wonder if how how critical that requirement was in the st four at the university level dr george could not supervise individuals who had a degree greater than you cannot do it well yeah but i mean they they they selected someone also then they have masses and in that field she obtained the master's before the beginning of the academic year so she supervise employees of an equivalent degree so she met that three before the end of the year she completed it by august this is then once the academic year starts in september she can supervise as employees properly that's that's what happened there and i ask a question about remedies  contention is made that you already agreed not to insist on exhaustion that's just not true are you just not true what are they basing that i believe they're basing that on the fact that we've had to file joint stipulations of fact and i'm not disputing that and we did that and we some of the positions that that were at issue in the in the joint stipulations were ones that were not exhaust started administrative exhaustion in my answer to the complaint into the amended complaint so that was in there since day one it's so i never consented or waived administrative exhaustion you can identify when i ask him and he points to something that's going to be a surprise to in your brief you point out that you didn't consult i can't recall if i stated that or not your honor that's just hard for us to deal with when we have contradictory statements in the briefs to try to figure it out that's how i deal with these cases i look if both sides agree i assume it's right and if they disagree i figure i can look in the record in the law books and find out where it's different but it's got to be pointed out and i understand your point is well taken your honor the one that the st year engineering technology is a position you're discussing and what i want to say to you is that dr george filed a new lawsuit against weiss you last month so that position that you're referring to is now in a new lawsuit now that it's been administrative leagues hasta through the e e o c process so i exactly and that the law of the case that yes she said that he was qualified for the it was there appealing that are that he's raising that but no there's no cross appeal here no they don't have to know it's  it's not it's not it's not enough it's not a new claim it's a basis of your club they don't have to file across appeal here but they are disputing that or are they not i don't know i  think they did in their brief i mean the law maybe they did in their brief but that's not what the judge found and it seems to me that they would have to she has set the law of the case and they didn't file an appeal but ok they are right they they don't have to file yeah and can as long as it is all ok it's a dispute for the jury whether equivalencies or permissible or not whether they created equivalency for the person who actually got it to move the goalposts because you said it in your motion but the judge's decision does the judge said we don't have accepted this i mean that's what you know what happened here is the judge said ok we i understand that both of you  waiving this matter it's not jurisdictional that you have to exhaust through the e e o c for something that comes up during the course of the case i understand that however there is a case before the united states supreme court now on this issue and i'm going to anticipate that the th circuit the six circuits ruling that exhaustion is jurist is not jurisdictional may be  overruled by the united states supreme court the united states supreme court universe unanimously said it's not jurisdictional so that's what happened with that issue where did they agree to not to rely on exhaustion if you're citing me something that that's a quote if you were a quote of the core i'm looking for something that's going to surprise your opponent he said it will well they said we don't  we're for purposes of x we are not relying on exhaustion when you've said repeatedly that that exists i'm come looking for where it is judge and i can't i can only find what i wrote and that and waive exhaustion if it weren't true that was our understanding that was judge pearson's understanding if you want i can probably find it my record on it possibly but i don't think i was a nd you rely on that in your briefs that there was such a yes but it's as it should be anything that you rely upon in your briefs that you can't say for the record i'm sure i can support it in the record not be glad to the letter with with just two words i said i'll send you a letter back but that as it as it happens we went back and exhausted through the you know it you're going to find it and send it right i will if i can all you need is one sentence ok very good and what i want to say is no it's probably moot because we went back and exhausted and then the e e o c issued a right to sue letter on the claim and then we filed a new complaint in the northern district of ohio which the court assigned to the cleveland division so there's now a complaint on this in the court had the district court has jurisdiction of this matter now i think that's not before this record just go up you could take your dish will notice of it but what i'm saying is that i don't know that this is a major issue i will send district court relied on its speculative understanding of what would be the law that's what they did it and it turned out to be that this the dispute over the law was one of whether it's jurisdictional or not that is correct care whether or not if there's been a waiver that's probably a waiver it wouldn't matter whether it was jurisdiction about the whole thing the whole dispute where the does it looks like the district court got it wrong but they got it appears to have gotten whether it's