this case is about rule fifty six dollars and what the rule fifty six dollars standard is in this circuit and what it should be in this circuit there is no indication at all that the district court in this case considered a single word from plaintiff's witnesses any of plaintiff's exhibits any favorable testimony from defense witnesses any plaintiff's arguments or even plaintiff's actual claims instead the district court copied the defense brief verbatim and issued it as an order in the case that cannot be the standard for s appeared to craft its opinion no i agree with you there that's not a per se violation judge but what the th circuit has said is that it raises some flags and the th circuit has said that in two cases or case the answer could send that in but it is denote review nonetheless in spite of that it's to know what review the reason i bring it up is it does make a reviewing courts job that much harder because usually there is an order to review where someone has gone through the depositions gone through the exhibits narrowed the issues and so we have things to focus on and so at this point i think the eight circuit has two choices on the one hand it can engage in that dyno will review and get into this evidence and figure out if this should proceed or not or alternatively it can remain into the district court and ask it to do the rule fifty six analysis by actually examining plaintiff's evidence examine planet's arguments crediting the facts and inferences in the light most favorable to plain just review what we were view what what the court wrote whatever its source and compared to the summary judgment record just sir so that's the other option that's right so then in that case obviously what we do especially with the judge of decades of experience or so and i want to make this isn't anything against it against the judge in this case i know they were down to one judge in there by pretty busy and so this is nothing about that i've never dealt with form of order i think that's a prudent way for a trial judge to proceed so do i except that's not what happened in this case well whether it's whether it's the argument or the proposed form it is akin to what have what you're arguing about ok it may be i'm just not i've never had the experience of having a brief copied like this and issued as an order and maybe that's my own inexperience but to get to your point judge about the about what what got wrong and what wasn't considered why should this be reversed the st is that we had very strong evidence of pretext and none of it was considered every single reason that mitt decode offered for terminating discredited by its own witnesses so they said well we got rid of him because his nurses didn't want to work with him and because they all said they were going to leave the clinic so we deposed his primary nurse his secondary nurses rd nurses for thinners they all said no that's not they looked at me like i'm crazy they said no we've never said that he's just fine his personality is just the same as it is anybody else and my understanding was that that not of the nurses were going to lay but doesn't the record shows that showed that at least three of them had threatened contemplated leaving largely due to dr james conduct towards them thank you for that you know they didn't produce a single nurse that said that even the primary so there is a document i know what you're talking about there is a memo that indicates that that was crafted by mit decoders legal officer but we depose the actual nurses to say to ask them if they said that things that were attributed them in this memo and they said no even nurse cook who is sort of the main sort of antagonist i think or the person who didn't like dr j the most she said no i never said that i was willing to work with him and so i think based on that based on the fact that all the nurses that actually work with them including some of the others based on fact they couldn't find a single one to back up a word of that was on this memo a jury could conclude maybe that reason is not true so then the nd reason they said is well this may adversely affect patient care where they themselves admitted a deposition they did an investigation there were no patient care issues so then they said that dr j refused to participate in a reconciliation meeting that they set up with the nursing staff their medical director said that wasn't true that dr j excepted the invitation and that then this medical director decided on his own to not set it up so then their th reason was that dr jay refused to participate in a nurse navigator program and jeopardize their accreditation we talked to the head of that nurse navigator program she said that's not true are accreditation was never jeopardized and in fact we only started this program a month before we terminated dr j so then they said well there was concerns about his credentials because he said he was he listed hematology on his credentials and he wasn't certified hematology so this is this is a false explanation case not a shifting explanation case o you that's i don't think i don't think i don't see any shifting i see different ways to say the same thing frankly ok i mean go ahead and why is that wrong you search so i think the way i would i understand a fal or so argument that i'd like to so yes it is a fall it is a pretext argument which i think the court u s supreme court and reads the sanderson said can be very powerful evidence but as far as the shipping explanations what we're doing is we're taking the letter where they committed to writing and said well these are the reasons we terminated him we're comparing that to the answers in iran or iraq or tories where they said no no these are the reasons we gave for terminating him we're comparing that to the letter to the reasons they give to the c where they said no these are the reasons we terminated him and they were comparing that to the answers they gave in depositions where they said no these are the reasons we're to give him for terminating and these reasons i've listed have all sort of evolved over time through that process and so that's why we say it's a shifting explanations there because it seems as though as each one is proven wrong they come up with another one and i and i and i hear your points are that well aren't these all just kind of related saying that he's a he's a bad physician or we don't want to work with him but to me they're they're different in that on the one hand they're talking the patient care on the one hand they're talking about he didn't participate in this meeting on the other hand they're saying the nurses wanted to leave him on the other hand they're saying he falsely represented screwed entrails and it is also a little stunning that not a single one of them is true that even as they shifted they still couldn't come up with anything that happened that even survive the testimony of their own witnesses so then we get my understanding though as is one constant theme at all of the documents and maybe maybe i need to go back and redouble my efforts on the deposition testimony is he just had a hard time getting on with other i mean that's why he was sent to the vanderbilt program that's why he did the thing in the  lawrence kansas the inpatient dealer that the one where he spent a couple of weeks there that's my understanding and that seems to not be false because it's littered throughout all the documents from what i can tell the testimony as well what's your response that since you're emphasizing the falsity here is sir and i think that's a fair i don't think that that's unfair to say that he had he had inner personal difficulties with people there and so to that i would say then we move on to the similarly situated analysis we compare him to other physicians edmund dakota who had similar in her personal difficulties and here we're lucky in that there's an excellent compared someone who went to two training programs just like each someone who actually burned through nurses who had six nurses quit because they couldn't stand in contrast to him what known someone who was repeatedly counseled about her interpersonal relationships with nurses with staff with leadership who continued to blame  and the differ and and who had her last incident the same month that dr j had his february two thousand and fourteen and here's where the disparate treatment becomes kind of interesting is that she comes back and she has recommendations from her physicians saying ok you need to have a reconciliation meeting with everyone bring her back into the fold have more communication very similar recommendations to what dr j had they gave him four days before they fired him they gave her two and a half years and they didn't implement a single recommendation that his physicians work for days from when i wasn't clear to us or so he goes to his nd program coaching program for these interpersonal issues in november vanderbilt that's right sir that's right so but really how much how many what's the length of time from plaintiffs return from vanderbilt to the to the discipline oh i would say about three  months but but the reason i use accu minutes because what makes them similarly situated is they both went to these two coaching programs they both go to one they get recommended to go to a nd they go to the nd one get two and a half years one gets four days and but the whole time it's the same governing board for the clinic it's the same medical director and so i mean in some ways you really couldn't ask for a better term and there was another white physician caucasian physician there who complained that the clinics actions against dr j were racially discriminatory they fired that physician dr ross wake and they told him they said explicitly the reason we're here is you raise this complaint to discrimination i just tried that case two months ago jury awarded over a one million dollars to and so now you have four things you have because i think pursuant to hawkins in estes a jury can consider the overall work environment and they can consider well she if the clinic terminated a white physician because he complained actions against dr j were discriminatory couldn't they also conclude that they terminated dr j because he claimed claimed actions against him were racially  proceed immediately as the district court did to the mcdonnell douglas framework and we submit for several reasons this wasn't discussed in the main argument and the district court melded the two and said that if there it was a  entire tenure at the clinic it reveals a refusal to take any responsibility for the state of the oncology department at the clinic to the point that he lost the support of both of his oncology partners  on about what about the argument that this i think that's an eighty a standard where it's not the title seven standard no there's if you look at the smith versus american greetings corp cases to two thousand and twelve it's circuit decision and that's a race decision oh i'm sorry case law was necessary but there are some cases in our brief that are older than that one the bouts of two thousand and twelve case and that was a race discrimination case and it very clearly said he met his limp lawyers legitimate expectation this is the element that must be she got from the nurses in the memo that's a critically important document if you look at the very end of that memo she says i think if we don't do something here all the nurses are going to leave and that's her supposition and that became the mantra wash that all the nurses would have left all of the nurses said they would leave i will leave unless he is gone tomorrow that's not what the evidence shows the evidence shows that there were significant significant problems to the point of rebellion in the oncology department and that that that was what they the compliance officer assumed would happen if they didn't do something about it but opposing counsel says you know he went  beyond that he said when when these nurses were deposed they talked about how they got along just fine with them and they weren't going to leave now can you point me to evidence in the record that would create a genuine issue of material fact if that were true but so i'm looking for something there that oh i think you have to look at the record your honor i think that the pam crawford memo the nurses didn't say that sometimes with the passage of time in the oval office with wait they didn't say that in the deposition are they they didn't say that willing to do that i do not believe that would create a genuine issue of material fact what was reported to the decision makers here was pam crawford's memo but your isa your point is you don't have specific sites but do you think that that's a mischaracterization or do  returned to the clinic that's what mr mathias said was a two and a half big gap before he was terminated what was his attitude and linda nafs said he was more paranoid even than usual he would tell us you better watch your back you better not talk to that person because if you do they're going to get you fired that's the way he was after all of this counseling this two week counseling through a counseling session that he received ackman he came back to the clinic with that attitude there was no one that that went through any kind of band or built or ackerman program that came back with that kind of attitude if you look at the vanderbilt report that's in the appendix that was generated for dr you'll see incredible defiance even with his treaters at the banner bill program he refused to give authorization to allow certain people at the clinic to speak to bander built he insisted on sitting in at vanderbilt on some of the  sessions where they were interviewing people at the clinic a crook and credibly defiant attitude and an unwillingness to change sets him completely apart from any of the other people that went through this at the clinic so was he meeting the more recent would be helpful if you're not sure i understand exactly your response to judge dross about what what comes out in the depositions of the nurses are they are you saying that they what counsel has said is simply total mis characterization of the deposition testimony or or that the nurses in their depositions backed off from their original  feelings about the doctor or what what exactly are you saying about the about that testimony what i'm saying is that there is no evidence that at that pam crawford me they all said we're going to leave unless he leaves that was never said that was pam crawford some position based on the facts that she told that they told her they were going through then you go to the depositions they all said that he had difficulty at a clinic but when asked why isn't it true that you couldn't work through that you were going to leave for you some of the answer no and so i think the court just has to look at those depositions and i don't think that that creates a fact issue because i think that even if the nurses all d said we would have stayed where is the evidence that that's what the decision makers relied on you look at the pam property memo and she's got more than a dozen bullet points of specific complaints that the nurses had about working with them so whether or not they were going to leave what difference does that make in in whether or not the decision makers base their decision on that and there's no evidence that it would make a decision i want to belabor the point but i would make a decision that they said oh you know what he wasn't so bad you know difficult but you know that's just him being him and we could get along with him fine as long as you know how to deal with them that would create it that would create a genuine issue of material fact as to whether these interpersonal relationships really were the cause of dismissing him well i'm not sure it would because i think if you look at the panel crawford memo that's what was delivered to the decision that was that's what they base their decision on and this is before race even entered the equation so if pam crawford center memo to the decision makers and it was all a bunch of lies i don't know why what evidence there would be about what was her motivation for that where is the evidence that it was race or it was were tallied asian or was something else i mean at all times under the mcdonnell douglas standard the burden remains with the plaintiff to prove intentional discrimination or intentional retaliation that's where this case falls that's what the district court found second item the pr adverse employment action it's undisputed here that dr broad was resigned before a vote of the shareholders was taken we don't know how that vote would have come out if it had actually gone forward sixty seven percent of the shareholders had to move to terminate in that that the reason if you resign because you fear the consequences of being terminated that is not a constructive discharge and those are planned what what's the loop but the lose your license that's not as well there are more if you don't if you don't resign you're going to lose your license and he resigns and it's coerced i don't care whether it's i don't care whether it's constructive discharge or not there is no case law that's been cited  this court that would support that position your honor and that's not by ok every case is different you know that's not the way it happened i mean anybody that resigns can later say my boss told and if i didn't the way it happens is for a jury to decide well there's no case on this circuit that would hold that that st they have to meet the prima facia case or we even get to the legitimate as your case is not supposed to be that hard to meet well a defense i don't think it depends it depends but i think the supreme court's ancient saying of that is still found well there's the element legitimate meeting the legitimate expectations of the employer means you're getting into substance what supreme what supreme court case  and so the typical case ok let's get to the why did you do it employer and then let's get the pretext burka and that's and that's what we do in probably ninety five percent of the recent title seven cases i would agree with that and that's what that is you're not even going there and that's what the district court did here i'm just trying to go through all the bases i've only got two and a half minutes left and i realize the court wants to talk about on through every element of the privatisation cases far as i can see there are contestable now and they're not issue for us and it's important to note that an employee house to both discredit the employers articulated reasons for the discipline and demonstrate the circumstances permit a reasonable inference of discriminatory animists so it has to be the late charts that was the reason for is original deal t or and the deal well charge and we established conclusively it's undisputed that that is not fraud he was confused about that that is not any kind of medicare fraud there was  kill ation in that in that charge about any racial motivation at all he was only eight only after being asked to follow up with asked followup questions by the sea in the department of labor is actually in the record the court can look at that see the context in which she used it it's actually apt five hundred and thirty so in his final complaint to the u s c in the department of labor he makes no mention of any kind of retaliation  to investigate you'll see claims in north dakota so it has absolutely no documentation from dr barrages tenure at the clinic whatsoever not a document where he documented complaining of any kind of racial discrimination not a scrap compare that to the volumes and volumes of documents where he's complaining about care issues nursing issues other things everything under the sun including the fact that another doctor was behind on his charts and he believed that was fraud that is documented nothing else so my time is up thank you said his personality is pretty much average i didn't lead them or anything i said did you have any problems with that no i didn't have any problems with it is true that is personal that his st nurse the one said one of the ones who said she had no problems with him did say yeah he's a little paranoid that's kind of the way he is she did make comments like that but nobody said that they personally had problems with them nobody said that they threatened to leave because of them and then they said well it doesn't matter because that's what was said in the memo and maybe the decision makers relied on memo they didn't know what the nurse said that doesn't do any work for me either because the medical director dr tenet your argument that the that the clinics decision makers were required to look behind the crawford memo no sir what i'm saying is the decision makers were present at the meeting the medical director himself what meeting so he had her interview of the nurses yes sir so they they did this crawford who is a legal officer meets with these nurses and  there was just one main meeting sir so there were individual meetings with the nurses there was one kind of town hall meeting and what i'm saying is the medical director was there present at it and later he testified ride that after he got this m he personally investigated when they suspended dr j he said he continued this investigation to make sure it was true so that's why i'm saying i don't think they can throw this on her because this is the guy making the decision to recommend his termination what about the oncology partners i want to give you time because we talked about the fact that it's difficult to get along with and that seemed to me to be sort of an rebutted that is oncology partners did not get along with them so i think that's i mean i think that's right i  don't you know except the only thing i would say is that talking about shifting reasons like judge shepherd said that that came out at the terminations meeting itself so this reason of terminating him because his oncology partners don't agree with him or don't get along with him and that wasn't mentioned as a reason for suspension it wasn't mentioned as a reason for his term the nation it wasn't mentioned all the way until his terminations meeting as they were going through these different reasons like he has a psychiatric illness or he has paranoid when they're coming up these other things that's when they stood up so and there's only you know and what one of them's fellow shareholder and one of them was was a physician wasn't cheryl yet but i think that's true judge i don't argue with that angry and vindictive and defiant that's not accurate either when he came back from accurate and they said he had made breakthroughs there that they were proud of his progress here you know that's in the bridge ok thank you sir thank you but thank you counsel case has been thoroughly briefed and argue