will be important for the court today is that what standard of you will be applied and of course fed ex will stand up here and say well this is an abuse of discretion situation it's a factual issue and that it only clearly erroneous issue shall be reversed i would take issue with that said there are various standards are viewed to be replied not only the same review regarding the facts but also the law which of course would be a bit of a review and then of course we have mixed questions of law in fact  particularly here what i really want to facades is we're not talking about credibility determinations as between mr burroughs and fed ex as witnesses for the purposes of this appeal i would say let's take everything that they say in now the court did correctly rule in fon that it was not appealed that the evidence was overwhelming that bo's was assigned to replace her male compared towards him terrible and took over all of his job duties and responsibilities and also of decision that decision doesn't apply on the sixth circuit because we have a vastly more employee friendly or employee protective interpretation not only does the proffer other than sex factor have to be has to be used legitimately has to have a legitimate business reason and it must be implemented reasonably under the circumstances with the subpoena really is all about is an indictment on and its own witnesses and testimony and in answers provided under oath in discovery and as you can see from the briefs this is what i would call the example of the first the witness and say it's in a car wreck case and the witness comes up and says well you know i didn't see the light and then later they i'm in their discovery sponsons well you know what there really isn't in the light at that intersection there is no light only to then be told by the court yes i've found there is a light is irrespective of all of these inherent inconsistency she's conflicting testimony conflicting interest given under oath in discovery the problem is the court never reconciled any of these to respond to problems and more importantly i never asked or requested or demanded the fed ex explain these and consistencies and if you'll note the most important document i'll put before your honor is the engleman report its own internal investigation of one of  the motion for summary judgment based on that limb is that the intentions of this court reverse i know that that's not the proper application along in the sixth circuit and then it went on to note that based on the other facts there was there was issues of fact with respect to  provided about employers the reason for what what occurred with forgot to your client what i'm wondering about here we've got two versions of the facts your clients and do with these findings of fact which could have gone on the way but ultimately was decided against your client what would be the basis and again i wouldn't say there was a just new washington since these these are flat out one can't say rob the other and when you say there was no demand that fedex explain you're not claiming that you were cut off in your cross examination o anything of that and you know no your honor what i'm saying is is if you tell the court which counsel for fed ex literally did that the job had been eliminated and that it no longer existed how can you jury also i believe that the court allowed the way this is a little more freedom to present testimony but the key the thing there is that she went on and on for you know a good bit of time about she all she saw was equal pay the same thing carol that's right and she would have received that if she had maintained the i'm sorry excuse me and what he was paid at the twenty seven low r and she's actually seeking to be paid as a twenty seven for something consider a lower considerably lower grade sterilise well and she was in fact awarded by management and g l twenty six position in the jail twenty six position in the twenty  says let me lay it out for you so you can respond is it just looking at what they said a trial it seems to me that fed ex easily met their burden of showing that there was a reason other than sex and that there's no evidence in this record that these disparities were in fact based upon sex that's that's the first observation that i would make so you seem to be attempting to overcome that by saying well geez i didn't know or they didn't tell me what their defense was or they were inconsistent in pretrial matters almost seemingly recognizing that if you only look at what happened at trial you lose now my characterizations clearly going to be different than yours on that would be there was a just at trial please be montel that at the beginning at the first phase of trial when the court did in fact fung that fed ex did not in fact eliminate the job the next in fact did not in fact give it to other employees that in fact it did go to mrs bowse and that she did in fact establish she was doing the exact same again classifications are another red herring job classifications are unreliable and they should not be trusted is the actual job duties that must be evaluated in the court what is the point here the point is they said something one time so then there are a stop so you when i get all your complaints about the adequacy or accuracy of their testimony in their disclosures i get that but as judge clay said the judge heard this trial and knew about that so what do we what's the air here that we're supposed to correct the error here is that fed ex should be b by their probe responses that were given under oath there were never supplement of the never changed in that same testimony that was provided in her determination in the first phase of the case that she determined that the prime fish case had been met and not accepting completely wholly inconsistent testimony that was made up at the eleventh hour courts have addressed the lose reposed event justification that companies will come up with i serviced this is not a  lost their jobs retired early were transferred so to just ignore i services seems to be a bit and we saw services so basically what i think you're saying is we shouldn't allow them to rely upon that i services justification because they said things are something different earlier basically right wholly inconsistent earlier yes and under what authority do we do that is it is it because it didn't  leave the affirmative that's what you seem to be saying in some points now you're saying now you're not saying that you're saying well they were distinct consistent we're not saying didn't happen of course it happened we're not so much sure about many people losing their jobs because as they testified many people in it up taking the voluntary buyout so they were left scrambling with jobs to be filled with not enough people to fill them and that was what i was getting by her earlier the court focused on the the legitimate business reason meaning the fed ex was looking to reduce redundancies in the workforce that had that and that may have applied to sonde to misbehaves yet here she has it every time the management is putting her in a position that would have been five would have been g l twenty six been paid comparably we would be talking today h minute minutes and mothball come in and based on her qualifications not based only evaluation the job is based on her qualifications they strip her of the duty or responsibility and here is the key they didn't take her out of position put her position doing exemplary job for over four years and during that time case law said you know the businesses need a legitimate a period of time but they said two years is too long five years is definitely too long but they left in the positions if that if they were going to maintain consistent with their position they should have taken her out of that position replace her with someone else who supposedly met their qualifications no you're a licensee out of time but let me get you to see if i can get you to clear up one thing you seem to be arguing that the companies explanations for the treatment of your client were pretextual in nature that those were not the real reasons they gave were not the real reasons but at one point in the record below you stated that we're not going to prove pretax which would seem to be at odds with y that the reasons they gave were not the real reasons or were contradicted by the evidence and i think the court i mean i think the court made note of the fact that there was no proof offered regarding pretext we didn't have anyone standing up saying yes we discriminate against murder both because she was a female but we do have circumstantial evidence you have wall fall a h r person who is not even responsible  at the special report to see the h r folks are involved it was not even her assignment and yet here she is sticking your nose into miss buzz every time she's elected for a position she comes in and structure of the job so you you do think you provided adequate evidence of critics you know to the extent i don't want to put words out of the way the well pretext gets to the point where they've sufficiently proven their heavy burden and our position is they never we never get a pretext much morning may it please the court my name is kim hodges and i represent the apple e's in this case federal express corporation and fed ex customer information services this court should affirm the decision of the western district of tennessee entering judgment in fed ex favor because after a full bench trial and an opportunity to weigh the credibility of all of the witnesses improved judge diane biscoe correctly found that fed ex's i service reorganisation met the requirements of the factor other than sex not challenging any discovery motion he really wanted discovery motion she may no challenge to the entry of any evidence at trial there was no motion to exclude no motion to strike there was no ruling at trial that she's challenging today and can do so now it's specific to whether or not there were inconsistent sees there again miss missed bowser's were misrepresenting the record the first one that she that she points to is an amended in iraq a tory response in which response that was specifically directed to the question of who assumed the duties that terrell left mr terrill left behind fed ex had originally responded with the with the identity of two employees who we believe to taken over parts of the duties and found out that we were incorrect and so under our obligations under the federal rules we amended our response to say that from that it appeared that some of the duties mrs bowse took over those that were related to the print vendor  function and that the remainder of his duties went away that was fed ex his position consistently all through trial we lost on that point that's how mrs bowse was able to sta the judge biscoe those finding that ms bose assume terrell's duties whatever they were at the time that he left got her a promise facia case but that's all that that gets or the remainder of miss bose challenges to so called in consisten ies have to do with the statements that fenix not statements that fed ex made in for example position statement or in deposition responses but merely to the fact that the fed ex's witnesses did not expand on their answers to discuss the full contours of the ice service reorganisation he's not pointing to any specific response or any specific statement that's incorrect or that was in that was truly inconsistent the argument is simply that we had a full opportunity to say more and didn't the bottom line is the witnesses were never asked and when we're talking about any o c position statement obviously the defense is under a title seven claimant an  fed ex discussed it's not as though i service was never discussed but the full contours of the reorganization were not discussed but more importantly all of this came out in trial misspoken attorney did it could in did cross examine witnesses on all of these so called inconsistences and had a full opportunity to present this test the inconsistency the trial judge muskoka heard them consider them and made a credibility determination that's what we're here on today is simply a disagreement with a credibility determination that the trial judge made let me ask you this how does the finder of fact give credence to your client's theory of the reviews and was recommended for promotions and pay increases and all of that sort of thing and while one wouldn't think reorganization would go on for years and years or if it did go on for years and years some explanation or some basis would be reflected in the company policy and the record of the trial doesn't seem to indicate much in the way of documentary evidence as to the policies and procedures and terms of the reorganization most of that seems to be based on testimony of one of the compan obviously feel free to interrupt me if i'm not getting getting to what you what you need at the court did make findings that let me address first of all that the point is that supposes making that she was left in a position for years and years because that's simply not correct miss bowes assumes the duties from in late january early february two thousand and four by december of two thousand and four she she landed in what fed ex considered a placeholder position of a grade twenty five to the grade twenty five level position so that while the compensation department was working out its analysis of the entire organization and the review of the different positions it's important to know that i service started in two thousand and three but what was going on in two thousand four through mid two thousand and five was the was the in the weeds work that the compensation department janice every walthall specifically spoke to this a trial because she was directly involved that the compensation department had to do to review what was left after thirty six hundred people left the company we were this was a reduction in force so after that new departments were created people were shuffled around it and the compensation department had to look at it when i say organization i mean the entire customer service organization as a whole to see whether the positions that were left or rather the job the duties that were left were properly classified in the right position this happened at an organizational level and then in a deeper dive level at department by department so the compensation groups started looking at missed both in particular in june of two thousand and four so just a few months after she first took over those duties because she was applying for other positions that she wasn't qualified for so there were conversations back and forth between miss both and excuse me miss jones every wall fall and mr burns my suppose direct manager about what duties she was taking over and whether that would fit the great twenty seven position as we've explained in our brief it's important to note that the great twenty seven position was specifically on everyone's radar because there may there'd been a determination made that it was being overutilized during this whole period she kept doing the same job terrell was doing at the twenty so she did you are yes even though she's applying for other things and they're trying to figure out what to do with them what to do with her she's doldrum same work that's correct your honor so the only way it seems to me that under services you can just pay her what he was getting is somewhere along the way presumably timely basis you made the determination that what he was doing and what he was being paid was not worth it and you're not and you're no longer going to pay somebody twenty seven regardless of their sex for doing what he was doing is that what happened here or not yes and in the reverse direction your honour's fed ex never specifically reviewed jim terrell's duties there wasn't any need to this was happening all over the company but that's what fed it what i service was addressing was the fact that we had redundancies in the staffing some people were frankly overpaid it's entirely possible that jim tara was overpaid and were allowed to correct that let me put another way of saying that there was an evaluation of what she was doing and it wasn't worth twenty seven position correct your honor at what point during the four years that it happened on it on a continual basis beginning in june of two thousand and four judge disco addresses this on page sixty six of her order the conversations began between janice a while thaw and denise burns over whether the duties that there's been some some analysis done of her whether she even met qualifications for lower grade positions but in december of two thousand and five the compensation group through janus everyone made the decision that that it was best to put her in a grade twenty five position as a placeholder until the compensation group got to mr burns department to specifically review not just miss voce but every individual in that department to make sure they were properly classified put in the place holder position then then later misrepresentation that miss post makes in her brief to the court it wasn't it wasn't a continual grade seven from two thousand and three to the till two thousand and five so what judge sixty five and sixty six is th reclassification occurred in the december of two thousand and four or the latest may of two thousand right through with that i do and may into two thousand and five is when she was placed the final the final analysis had been was placed in the great twenty five position then and she was specifically making and know that the statute of limitations for an equal pay act claim is not going to allow missed both to reach back to all of the decisions made in two thousand and four it only allows you to reach back to april seventeenth two thousand and six and by that time she'd been placed in the pay of a grade twenty five even though she was later moved to a grade twenty three she retained the same salary than the best you would argue the difference we're talking about here twenty but the great twenty five pay she was receiving at that point and the great twenty seven paid tara was receiving when he was doing whatever he was doing the  specifically to go position by position and make sure that the duties that were being actually performed were properly classified it was a scaling down from two thousand and three to early two thousand and five so so it's not correct to say that the position she ultimately ended up in in two thousand and five was not a part of us or is it was it was it was the tail end of it and it was it was the final analysis that the compensation group was doing to make sure that we finally had everybody classified but earlier than that in two thousand and four she had been put in a placeholder position she wasn't making grade seven money for years as she says in the brief she was she was placed by no later than december of two thousand  she was placed in the grade twenty five position and had already started making great twenty five money i hope that answers your question clarifying yes me a little bit i understand that the twenty three the twenty five twenty three twenty five twenty six and twenty seven are example level positions the big distinction is made between the great twenty seven and twenty three twenty five twenty six the big distinction is that that is on track with a management level position it's a special position that's only there was only ever intended to be used for particular circumstances janus every wall fell testified to that trial under direct examination yes what i'm asking is if the seven is on  a scale and all those mid twenty's numbers are scale is that some sort of continuous scale or are these just different what's the range of some of these scales i guess what i'm asking do you mean the p would make it clear that you were talking about a completely different scale but this is a scale where where i don't know what kind of numbers are we talking i say i'm out of time and the the great twenty three twenty five and so forth  career what's called a career progression meaning that i might be a great twenty three position and then take on more duties and can be promoted up to a grade twenty five there is a difference in pay the different pay bands for each of the grade levels grades seven is is on a different is on a different path because those are nonexempt positions the exact level positions go from i'm guessing a bit here i think it's about  on a different path if you went from exempt exempt you would have a radical shift in the number because it's a different kind of scale is or is that in the position number or in the number and we're just looking at seven and twenty in pay when she moved to the example level positions at the grave twenty five and twenty three positions there are but there are different pay bands for each number to position them to not exempt is overtime no overtime right correct your honor oh just out of curiosity do you know what was he making in here not exam position with what overtime she was making which she was working compared to the twenty five that she went into it sounds like there's a huge differential because of the number twenty five in the numbers but what what are we talking about here do you know my question i think it was roughly this is in the in the trial record and so i had to guess but the i think it was roughly a twenty thousand dollars annual difference exam positions not getting any overtime but if she's working sixty hours in the in the nonexempt she's getting forty hours base pay plus twenty hours overtime right so but she says she's doing the same job so i presume if you spend in the more the same amount of time both times so if you add back if she earned overtime and are not examples and if you add that back in what was the difference between what she was they paid and what she said she should be you know i don't know the answer that your honor but but but conceptual you're correct if she were if she had been paid at the grade seven and was making overtime then yes she could have potential she could potentially have met the same salary that she was making as a great twenty five that in the record company there must be some place we'd see in the record what dollar she actually claimed she was and yes the dollar she was actually making yes your honor i don't know that anyone at trial made a specific comparison of the overtime plus base hours in the plaintiff at some point say what  claim as well and was claiming overtime there so i'm sorry i don't know the exact answer to that thank you thank you very interesting question just raised the reason partly why there weren't specific numbers is because we had agreed to bifurcate the trial so the experts that we have been which is what we're asking the court to do is to remain and for determination damages was reserved until the law building a portion of the trial was was resolved so that's why the specific numbers were it's interesting to note when we're looking at the question of how long is reasonable the keep somebody in their old pay when they're maybe they're the pay differential be a factor that would be taken into account in terms of how reasonable that time period absolutely i will get to the pay differential in this case if she was working overtime and therefore the five hundred dollar differential kind of hard to say that six months nine months twelve months is unreasonable or five hundred bucks but maybe the answer would be different if it was twenty or twenty five thousand and it was twenty five thousand because she was not getting paid overtime even though she was caring to be printer earning overtime pay she was not getting paid overtime and that was part of our other if else a claim that when she was seven he was when she was a seven and the problem is what happened to that claim that lawsuit there was no real time meaningful time upon which to claim the lack of overtime in fact that there was a finding that the fed ex did in fact over eleven hours that still remains on play but to get to the point though the discrepancy and i want to make sure  was clear she remained the terrible job for four years there's no doubt about that ok what i was saying is this the first year whatever was a geo nonexempt seven and then the ultimate she was either twenty three or twenty five but under she was paid at that rate whether she was a twenty five or not for the remainder the right but still vastly lower than terrell's play when he was there and again she really made the determination by that point that whatever he was doing the loss on the court the court accepted the lower court's easement the lower court accepted that they had reviewed the job duties when in fact all they were doing were were evaluating her about that going back to the deal seven she was performing you adamantly maintain was the twenty seven position duties that tara was doing she's actually getting paid more than me she was benefited by staying in the twenty five rather than what you're now saying she should have been by shuffling her back to the nonexempt but she would not have been doing terrell's duties she was going back doing her g l seven responsibilities oh i see take a back out of that and out of the whole entire role but continued the same throughout this four year period during which this i serve as a reorganization is going right and the magistrate judge correctly or incorrectly found that's not true found what part an educated judge ruled against you on that heard all the evidence ruled against it and the only error you pointed out was well geez they should be bound by other things they said in discovery that sort of how i see this well any and but they but the the amount of time the court based its determination based on these numerous communications between burns and will fall of course it's interesting that this may that was just reference may of two thousand and five was the seminal point in time when the twenty five was determined her boss tom a lady is over there working on a special assignment with burns to give her credit for the position but has nothing to do with what all those doing is not even her as and the most important thing live with your daughter is there is absolutely no paper trail whatsoever no inner office memorandums regretting not only os herb's as both the supposed evaluation of the terrell position or margaret those responsibilities no report came out in two thousand and one and made it clear that she had taken over terrell's job duties and that she was in working out of a consistent pay position and that the problem in this case was a lack of false completely conflicting testimony that again while going to be questioning about without the poor performing an evaluation of a job which they just testified to had been eliminated or had gone to other people thank you for your time you are  called the next case