yet two very different punishments glowing you couldn't ask for a better employee there were not there was nothing in his file to suggest that there were any problems with his performance in early january of that year one day jason was at school doing his job he had a laptop computer it was a it was a personal laptop computer it was not the school district that he took it to a to a coworker a woman who worked with the school and that jones and mr ultimately was was able to fix it that jason were in the room together and we don't know exactly the time both say they don't recall how long but it the estimates of ranged anywhere from twenty thirty to forty minutes  don't we don't know is how we do know that it was well less than one class period over them immediately and investigation was launched into what the two of them were doing in that room  this went on for a series of days a series of interviews between the two in that when the dust had settled jason had been terminated from his job whereas miss jones had not she received one day the question is based upon those facts and many other facts in the record could he jury reasonably infer that gender played a role in that decision when order to get there from a legal perspective we have to don't have to have direct evidence from a nation rather you need this indirect evidence that mcdonnell douglas set out so in a case like this we look to the prima factory case of disparate treatment for employees and this is where the circuit court made a tremendous mistake and and i think it it can't be highlighted enough there were factual findings and there was a legal take on this as well and looking to see if there's a professional case we look to the two employees and we look to see who the people who were involved in the decision making and were these two some where they say the district has always maintain of them were treated differently because you have two different people making recommendations on what should be done and that ultimately was what was carried out now if we were to assume for a moment that factually that was true or if we would assume i suppose more correctly that the evidence compel that factual finding we want to first look at what the law says on that and i think that the the most appropriate case to start with is the coleman vs donahoe case which is  two thousand and twelve case from united states court of appeals for the son circuit i think both sides addressed it throughout our brief but it talks about this very issue about somebody who makes a recommendation and somebody who makes that decision and what the court said there the issue is not only who proposed the discipline but who was responsible for and in other words who had the authority to make that recommendation well in this case even if we assume that randy allen would have made this recommendation he was not the one who had the authority to make it to the school that was kerry who she was the superintendent and in fact she is the one who made the recommendation to the of the facts the district has repeatedly argued that mr allen was jason hanson supervisor but he wasn't and this is a dispute a fact to support the fact that he wasn't mr hanson supervisor we said and cut it down to one line you could say that he said that however i if i would ask the court and we've we've outlined the specific passage i believe and in my reply brief on page five of my reply brief and it goes through exactly what that line of questioning was and so none of those things ever happen there's no evidence to suggest that it did we had to get the job description that says he's not the supervisor now taking all of these things collectively and i think that even if you read through it jason said during his deposition there were there were certainly security aspects to his job but he was not what you would think of as a security guard he was playing quote at all times he did have a gun however the gun was concealed no one knew that he he had the gun he dealt with a lot of issues that had nothing to do with security in fact most who didn't have anything to do security he was a monitor in the halls during passing periods he would go if there were if there were problems with students during the course of the day they would send him down to go get the student and bring the student to the office those sorts of things now if there were a security issue he would have dealt with that there's no question about that and in order for him to deal with that he had a radio that he used so that he could did on that day in sitting down and talking to a veterans was really no different than what you did on a lot of other days that was technically probably a violation of a rule and the reality is if the jones was fired jason hanson was fired we wouldn't be here because it would  e treated say but that's not what happened and he this these are the things that he would do he would sit there he would he would chat with other people who worked at the school he would stop by classroom he would spend a good deal of his time at the main office doing computer work the suggestion that he was supposed to be continually patrolling the halls is not based upon the facts or at least if it's disputed and he had a radio to deal with that the to the way the chatham school or middle school operated was there was a when when you wanted to go into the building you would push the button and that there would be a camera that would record to the office whoever was in the office the receptionist would push the person in the person would go to the office to check again and so the security component yes there was a security component but to suggest that he was supposed to keep truly provided security simply is is is not accurate when the other things he would do every morning he would go around and make sure all the doors have been locked at the end of the day help get the kids off the off the bus or choosing under the bus after school those are the sorts of things that he did so there were there were many components to it and i think that his affidavit is goes into great detail on that and what he actually did there's also his job scription but you know that there certainly was he said security component to it but that was accurate according to to jason he was talked to he talked to radio and randy allen told him hey look they're going to fight they want you gone and you kept referring to them and we and i've outlined that conversation military might be a little off on that but that's what he said and basically i think at that time randy allen suggesting to him that it might be in its best interest to resign now interestingly it and i think this is received they're going to fire you be prepared to be fired and two days later she was called into the administration office and she went back in the interim she had called the superintendent of the district woman in car and they discarded it and told her you know what we're going to suspend you for a day so you know our view of you have it in since you had these two different people who both went and told these individuals that they were going to be terminated ultimately kerry ruby decided to back off now one of the concerns that we have and they have courts dispute this but the idea of injecting sex or gender into what was our theory is that when this initially started they thought that there was something going on between the two of some sort of an illicit relationship between two clearly that was not the case that was maybe listen to the improper term maybe i should say it in an inappropriate relationship for the spammer school i think you know i'm trying to choose my words carefully here but this was a private office with the doors close and the blinds drawn they were i think that they were initially the conclusion that they reached but but that didn't stop kerry ruby from saying in her recommendation letter that jason had been flirting with yvette and same earlier during the questioning asking a vet was he flirting with you that testified that she felt as though they were trying to get her to make a sexual harassment claim against jason and to us these are these are his surrogates for the sexual harassment think with the school district we would tell you all some that we is that they're there concern was that we have this security officer who was supposed to be available and ready and he wasn't at the ready and i think that's what they're going to tell you their concern w which could make a great argument to a jury but it might not in our in our view is that argument should go to a tree because we don't we don't think it's true and they one of the things that they raise is they they say well sandy hook occurred back surgery for the circuit court referenced the sa tragedy which happened a month before and said everybody was on heightened alert ok but what evidence is there for that if everyone was on heightened alert when we were in the allan have or somebody have sent out a message to the s r o telling them we are on heightened alert people who were doing personal things that they probably should have and later in the day later in the day the two of them jason was off the clock she was on the clock he was teaching her some self defense moves in the gym they found her in violation of the district's policy for abusing time for an hour she felt for an hour trying to see what time time for an hour because she was on the clock when she was she was being taught these self defense moves by jason so you have two people here who both were involved in the situation where they were doing things that they shouldn't maybe shouldn't be doing arguably it's a it's a misuse of time and probably both of them could have been is this case there's a difference there is a difference in the way that these two were treated and that's the problem and we believe based on the way the laws established and the facts of this case the jury should have been allowed to make the determination good afternoon that's a police court want to address a couple of things right right off the bat i think we just heard a concession that we had a security guard not doing his job and that drives right into list to sell on january eighth he brings in his computer and up in her purse the civic office box truck to forty five minutes while she goes about and does other things that are undisputed fixes lab takes calls discussion in the appellant's brief that he's had this long history of good performance again that's undisputed he was going to avoid years part time unless he was a good one to me that points even greater to the an active or retired police officer his job was to be a security presence those positions were created in the aftermath of columbine and the argument that sandy hook is irrelevant to a security guard in the school is quite frankly  the computer working on his personal computer yes he had a supervisor randy allen and there's a lot of evidence about that i'll get to about randy allen and his supervision of mr hanson and randy allen it's in his written job duties it's his job to evaluate and recommend hiring and firing of those as our us he was in all the investigation meetings that took place that included only mr hanson was there with his and superintendent and the director of human resources until the final meeting that also included the school principal and the superintendent herself he evaluated those things and we have sworn testimony from him saying i lost trust in my s r o he was not based at the middle school utmost importance in his evaluation of that and based on the circumstances he lost trust and it's not only the dereliction of duty that day is the key reason he was fired but thereafter an investigation was launched it was to be untrustworthy that he was misleading and mr hanson will tell you oh you know i made a mistake or i could call and that may be true but that's not what matters what matters is the perception of the decision maker and recommending this termination whatever mr hanson says can't change the perception at the time that the the review board which was mr allen and his the other administrative years at the school district they viewed him as being uncooperative and untrustworthy and immediately after that meeting they instructed mr hanson do not contact anybody else involved in this investigation do not contact miss jones what happened the strong cell phone that was sitting on the desk started buzzing mr hanssen was calling he says in his recent this case it was an accident i was trying to call mike that we'll never know for sure whether that's the truth that's what he says but that's not what matters what matters is mr allen and the other  uncooperative security guard all of those things weighed on this route and that day he recommends terminations at three fifteen that day he went and met with mr hanssen by himself and said you're a police officer might be best for you to resign only one who can recommend firing the board based on that logic every single employee of challenge school district is carry ruby's employee and there are no other supervisors and then there's the pressures ar exclusion of randy allen and the addition of chad camp who was the director of technology so we have the director of security in the meetings with this for hanson we have director of technology and the means with mr separate investigations separate etc but the bottom line is we have undisputed facts sworn testimony from the director of technology and director of security director of security lost faith in this around he recommended to carry ruby to larson the assistant superintendent he needs to be fired i can't trust him to be the armed guard in this building now we have the director of director technology check can't say she's a technology employee i can lock down her computer i can monitor her monitor her more closely and i trust her and i think she that she continued to be a point totally different decision makers totally different violations of their drug abuse they definitely both violated their duty she was suspended in in her written reports was the checking out later that day that was considered and forced in suspending her day so whether or not she was fired really if she had been fired we wouldn't be here were to be in her office to work on some technology issues sure this will still work on personal computers which is obvious and she violated her doctor just the extent that she did that mr hanssen was to remain highly visible troll the hallways to be a security what and that's the bottom line and they had different people overseen those issues so the second part of the the other prong is the similar similarly situated employee wrong and they were not there after we had a female african american boy tell her therapist that she fantasized about killing her boss she was fired and in the those employees all had the same decision makers we have mcdonnell douglas swinging door here the board ship the school districts conceded in the briefs school district had put in the reasons for term a mr hanson it's in the light so we come back to the issue of the tax when you look it all goes back to the super personal language that we the mr bank records were not here to re evaluate their view of the evidence it's like a discretionary appellate case you're not there to read digest they thought it was untruthful but even more he clearly was and cooperate calling this jones immediately after being told not to and he clearly could not recall dance that happened less than forty eight hours prior again concerning mr allen a security officer you know a in her office and then finally already addressed sex being put into this matter you cited are pretty it's very clear the first meeting on january tenth that they're asking mr hanssen why do you think you're here technology officer office but also the the the fact that they may have asked questions of miss shows about are you comfortable with mr hanssen or anything suggestive of all sexual harassment is absolutely required as a professional to ask those questions if somebody comes in your office and says look in my universe good for sexual harassment you better find out if you should be investigating them why is he bringing that up and he knows in his deposition which we quote that there were some concerns that somebody else would shoot you somebody else's sexual harassment so he had concerns about but ultimately he's the one that raised that issue they that there's a lot of mr baker in his brief in an argument makes the contention that there's disputed facts that were resolved by the trial court in this case i think if you take a look at the trial court's order it's like we're there where there's very few facts deposition but jason also testified that mr allen said something very different to him when the two of them met and i will read the way jason described approximately three fifteen on the tenth randi how inner hansen's office at the middle school alum proceed to ask hansen a couple of questions and then told him that he was being suspended and that quote they're going to fire you he answered responded by saying that that was totally unfair in asking why alan's response was they don't believe you when he answered inquired as to who was going to terminate him alan responded by telling him that it was carried chill in the shop alan suggested a handsome that he would probably best if you were to resign his position because it could be harmful to his career if the sheriff were to find out about what had occurred and some rebuffed allen told him not to do it that he did not do anything that were to disturb a nation at the sheriff's office would encourage him not to resign on than told hanssen that he couldn't do anything about the decision to terminate his employment and that it was out of his control mr hennessy just told you would reaffirm that mr allen said it was out of his control it was out of his control or at least a jury could permissibly conclude that it was out of his control and after all that's what we are focusing on here the question of what is a jury what can a jury conclude and based on this record a jury would not be compelled to find favor of the defendant i want to go back to one of the legal issues that was raised by mr hennessy and he said and his place falls right off the bat because he wasn't performing his job therefore he loses that's that that simply is not the case that suggests that the law doesn't apply to bad employees it does it doesn't like bad employees and that's the whole point behind the corpsman donna decision you had people who did have serious violations of policy one was fired one wasn't the question is you're looking at two different issues two different people being treated differently because of a similar issue that's exactly what happened here they want to say jason's was worse it was worse later that day of that spend an hour where she continued to be paid to spite the fact that she was giving she was she was getting that instruction from jason when he was off the clock she abused more time that day in his affidavit he explained i would frequently go into teacher's rooms and sit down and talk to him about personal things because one of the things that he was supposed to do was to build rapport with the other stakeholders in the building and that included the teachers so