have before the court today i would like to ask the court to to review the cert or the district court's decision and employ a test that we believe is more indicative of what should have been applied that the plaintiff's race or other prescribed factor caused the adverse action which in this case we're claiming was a discharge you know let me just ask you this one of the things you want us to draw is an adverse inference from f m c's failure to provide re with attendance records right of the nine african american brokers but reed never specifically requested the attendance records for any of reid's cole employees but we did in a very broad general sense you asked for records but it was never tailored to your discovery requests right we requested the personnel files of those individuals which like reads would have had the attendance records in them pursuant to the defendant's testimony by misfit's truck and the personnel director down in indianapolis all of these records are kept in one place and that is their file and so did you meet and cofer with f m c about those what we have an issue with here is if we if we ask the defendant and sometimes myself i do defense work you have a defense and that is well everybody was plied to the same standard and i say well show me those records and they say no how far do i have to day in order to give them the evidence to have damage done to my case and that's the issue if they don't want to give their strongest evidence to me that's fine then we're stuck with the record the way it is and what i have well million not stuff because you can always come to the district court if they refuse your request and it's a reasonable request to get the district court to order them under a motion to compel to provide the documents right and then i not i can use the inference that they don't want to produce those right right but you never went through those steps right never filed a motion now was our position your honor that we didn't need to do that because the inference was a negative one those records and  this is the other car that if we're alleging that mr pitts trip was the one who was in control of the attendance procedure and enforcement and she was applying it in a discriminatory manner towards joseph rate felicia bates another african american broker liaison sent cynthia hubbard she would have made those marks in the record anyway and she wasn't and the reason that we know that is because we went through the depositions of  bates we also deposed vicki sperry we also was a supervisor and we also deposed bitstrips getting back to this negative inference though that was never raised before the district court either the fact that they had literally clocked and what was there a time keeping system that recorded are a rival and departure not to my knowledge and what essentially what we have are the three  individuals as we stated in our briefs that we've shown in the record we're required to show up at eight o'clock in the morning and the only three that were sitting there were the african american employees they took these videos of the clock on the wall they took they tr to take the video of the computer clock itself to show that there wasn't anybody there to the clock besides down so there was one set of rules for the non black employees and another set of rules well is that clear or or isn't there some evidence that this is the way the employees work later to six instead of five that policy was the way it was for everyone before those two emails were sent out your honor and that was our contention there were two e mail sent out one in january twenty first of twenty thirteen and a second one an april ninth of two thousand and thirteen which basically states the hours of operation are from eight to five and that's good and everyone is employees who were also required to show up at eight o'clock they were disciplined that was an arbitrary pilot but it isn't so clear that they were required to show up at eight o'clock if in fact they work for ninety six that's of course the same amount of time and why it was so their dinner gets they have to they can sleep a little longer but their dinner is still a right and her deposition was that eventually everybody was setting our some people are coming in a time other people were skipping lunch they were taking their breaks and then they would leave early and cheryl bishop stated she wanted uniform hours eight to five and she put it into him but what about all these people who are working nine to six apparently they were in violation of the bitstrips policy but they were not disciplined for it and that's part of the problem that we have a wife worried why weren't they  people to work he's paying them right absolutely and that and i thought i thought they i thought they were working nine to six instead of eight to five they were up to a point and that's when these e mails came out and everyone was then such to work eight to five unless they received permission and the only time that that permission was allowed according to cheryl bistro was if there was a different time zone that they were involved in some you know accounts were in michigan where there were an hour  that or something like that otherwise everyone was required to work pay to file it's the end result that i want to focus on and that was when we come to the terminations well how much to know how much do we know about that the people working nine to six where they all people who are in different time zones like that i don't know i think there was only one person that was allowed that i'm aware of after this policy was put in place that was actually still working nine to six if my memory serves me and i do believe that individual was not only working nine to six but also working from home because they had accounts in a different time zone that's according to cheryl bits from everybody else was required to show up at eight and leave at five it wasn't as though how they were favored it was the enforcement and when they weren't after work or they were late at work that we have a problem for example there was employed by the name of land issues a white female who was absent from work for four days and was incarcerated and did not suffer any adverse consequence that was brought up in march sixteen male so i was in jail she was in jail that was brought up by felicia bates and there was it was basically relayed down to indianapolis to the personnel department by cheryl bistro when their complaint was made and they basically said just paper the file don't worry about that but that's an example now joe reid had to take time off because he had a child with special needs he wasn't allowed to work from home and these were things that were saying where are the the the rules were not applied equally and that was basically the basis for the determination that the state good afternoon your honour's my name is stephen roman on behalf of freedom mortgage corporation may it please the court we think that in every respect judge sables opinion was spot on but before i get into any of the details i think it's important to provide some context surrounding this case this was a short term employee mr reed he unequivocally admitted in his deposition that within a four month period he violated the attendance policy nineteen separate times this is someone who flagrantly flouted this policy he was let go in a reduction in force the reasons that were given which are in  eckels written opinion which are uncontested is that he had the lowest seniority of a pro career liaison and he had written discipline on his record for violating the attendance policy which followed the verbal discipline and following that he continued as admitted in his deposition to flagrantly violate the policy in a want to matter i think now i want i would like to know why  all the time and i'm the only person who showed up there's no actual evidence of that there's no time cards there's no attendance records there's no evidence most importantly critically most importantly that the decision makers vis at the burden of persuasion backwords in other words we've got management setting office hours and eight to five if certain white employees came in reed would need to establish that similarly situated individuals who are not african american who are broker liaison's were not complying with the policy itself he doesn't have any of that evidence to support that but what is more you have the evidence that's on rebutted of spearing end of bidstrup most of both of whom where this decision makers and they said look first of all there is nobody who came remotely close and this isn't hyperbole they were very clear  their statements they said there is nobody who is remotely close to the number of violations that mr reid had number one number two is that the only evidence that mystery purports to point to in his briefs and on summary judgment  individual that that one individual miss worked on one occasion now mr reed's counsel says well she was in jail well who cares why she was why she was missing work the policy says that's irrelevant he says she missed work for four different days look at the policy the policy itself says that you can have consecutive days and they count as one occurrence so that's one occurrence you have one comparative now let's say mr reed is correct that she had four absences here first of all she got a warning that's uncontested number two is that he had nineteen absences and they kept occurring after each time that he got a verbal warning and a written warning so we think that that's apples and oranges here what it sh arrested it was a domestic incident is all i got out of the record i think that there was from what i can glean from it some dispute with her husband that landed her in jail think you know i guess the real question is whether his personal observations are enough to shift the burden  black your honor one more thing that i would point to in addition to the points that i had made previously is that this court in the harper vs c r engineering case made clear that were plaintiff has the type of case that we see here foresman of an attendance policy if they don't try for the attendance records to the district court they cannot establish a crime aphasia case i think that this court has addressed that issue already i think what the plaintiff tries to do is sort of a default and in our grief we think that this is we call this a default argument and i think it is if he says look we recognize that we don't have any evidence but we think we can establish a prime official case because we have no evidence and so that turns the jurisprudence in the seventh circuit and the law all over the country upside down and on its ear in essence they're relying on the international union case which made very clear in a caviar that if you have the burden of proof you can't rely on the absence of evidence to establish your burden of proof and plus of course before the district court they had multiple ways of trying to get any evidence that they needed to support their case now is what mr andrew told you he requested in his discovery requests is actually not correct number one is that they did not request attendance records i have the in raga tories in the document requests here and i've read them they don't request attendance records he says instead what we requested personnel records actually they did not they didn't up we reviewed those discovery requests on multiple occasions and they're entirely missing so what mr andrews argument is look i didn't prosecute my case i didn't look for attendance records in a disparate in forstmann of attendance policy case i didn't do the most fundamental thing that i could have done and i want you to reward me for that by allowing me to survive summary judgment because the other side didn't put forth evidence negating  part of my prime official case it was his burden and there was no effort in discovery whatsoever then it is consistent with the failure to depose two different decision makers now i think as far as mr andrews argument concerning  may get lost in the technical nuances of the two methods the central question at issue is whether the employer acted on account of the plaintiff's race fits or ts now what judge posner did further is he said i'm applying the mcdonnell douglas standard in there is race discrimination and that's what the plaintiff's counsel hasn't addressed in this particular case i think judge sable was on all fours with what the ortiz decision required him to do i'll defer to the court if there's any other questions and i thank you for the opportunity to present our case thank you mr graham nothing mr andrew just briefly in that in the minute or so i have left we also had shown that there were four employees that were constantly late but here french lantus and cloak who were caucasian females the ortiz just real testified that the cure was laid on a daily basis for periods of time and then jo reed had observed as a reason given no no reason was given and there was no out no indication that there was ever any discipline or suspension and she was who had bad attendance records to greet you did you find out why they were why they were absent not we just i mean you know if you don't get second then they miss work for several days sure but not as frequently as you're on a daily basis and well this was on a daily basis so that that was by the i mean a daily basis bates testified that she observed because you're coming in late five days a week five days in