first mis analyzed some of the evidence second it mis read some of the evidence and third regarding some of the very important evidence it just did not consider it at all in its opinion let me turn to the evans i believe that ms analyzed the court basically said that defendant had basically no option but to pay mr wood thirty five thousand dollars more or whatever it was because of the collective bargaining agreement but that basically decision presupposes that the only option was to hire mr wood as an hourly union employee and of course  the employer had other options that it could've employed for example it could have offered or gone out as it had done always in the past and hired a no other manager advertise on public hire another manager and pay that manager a salary and the salary would necessarily have been likely more like what mr perkins got not the substantially more money that mr w got so but if they had some options if they were gonna hire would they were going to have to pay him this hour at least salary is that correct well that's not also true either they could have offered him there could have said this is a salaried position mr what if you want the job you're going to have to take the job just like ms perkins did as a salary job but instead they a lot they basically took what was always a management position imagine savard position and decided well we're going to we're going to change this into an hourly union position and because necessarily this is a you know management position that involves people working in more than forty hours he's going to get now his of his overtime and things like that so necessarily he's going to be paid more that's one of what the unions reaction to that well if they tried to hire would for seventy thousand dollars well the position that there should have been any reaction by the unit because of position had always been a salary management position but they seem to have done this to benefit mr wood by leaving it in the by basically changing it into an hourly union position and therefore giving him all the extra pay and i think a reasonable jury could have interpreted that as sex discrimination so they had options and yet they were forced to shut up before your client was it a management person or a union person was and it was a management is it always been his salary management and was that person male or female the person was a male and was that person paid more than ms perkins i am not the yes it was i argued the district court level that there was that he was paid more than his perkins i'm focusing on this at this appellate level more on the comparison to mr wood but yes that is true it's always been a salary management position would really you've got a lot of experience now at this you've sat down you know what you're doing and we want to keep you but if we're going to keep you we have to pay you seventy thousand dollars instead of what you're making now and mr wood if he's got sense says no thank you i'm not interested in taking a thirty thousand hour pay cut i'd rather keep on the salary that there there isn't any violation of the equal pay act if you basically look at it as if we really want mr ward as opposed to we want a man in the position and we already have him in the position we're going to pay him more but if it's just really in the minds of the employer in the circumstance and i think a reasonable jury could have interpreted this yet understand the defendant has a very very heavy burden the burden is on it to prove its affirmative defenses and i can't for the life of me understand how the court would have said no reasonable jury could have interpreted these facts to constitute sex discrimination you know if you can get in granting summary judgment for the party with the burden of proof that's just astounding to me there are other errors here the another error was i argued that if the district court level in my brief we didn't get oral argument that the additional twelve percent pay increase that mr wood got above them and beyond that the twelve percent pay increase he got earlier for for moving into the leave position also constitutes sex discrimination and this was an additional twelve percent that he got after robin perkins resign the district court however said no that doesn't apply because robin perkins was the one who actually gave him the twelve percent increase and that's just a toll  misreading of the record but there was two twelve percent versus one he got previously but then the other one he got well after miss perkins resigned so she it had absolutely nothing to do with the additional twelve percent increase he got after he he replaced ms perkins so the second twelve percent pay increase was to compensate him for taking on the what was once a management job and now it's his job not sure what it was for you got additional you got initial twelve percent increase we're taking a leave as us and them once they offer him this particular job they gave him an additional twelve percent increase from burton and nothing to do that that the court said no that doesn't apply because robin perkins actually made that decision but that's absolutely not true it's not reflected by the record gary would testified that when he took this job to replace robin perkins he got an additional twelve percent pay increase above and beyond the out what he would have gotten hourly and that had nothing to do with the collective bargaining agreement that was an additional you know so a basic problem is if would had been female instead of ma then you wouldn't have any equal pay claim at all wages for act so what makes it a jury question apart from mr wood being male well he's so basically then because there would be an equal pay act claim any time that a male replacement gets more money than the female worker or it what explanation is is there for that that the employer has to say it's for a reason other than sex that the man was getting more my defendant has absolute prove that no reasonable jury could disagree with that in this case the defendant was chiefly relying on the collective bargaining agreement but this additional twelve percent increase had nothing to do with the collective bargaining agreement i think a reasonable jury could interpret that as just an additional plum given to him because he's a man and then that the but the thing is that the court because the court misinterpret the evidence on that it it believed that it was ms perkins who gave him that additional twelve percent increase  has the court never actually considered that evidence at regarding whether or not that constitutes access scrimmage and because its interpretation of that was that perkins made that decision in fact the evidence suggesting that what we got this great employee new employee gary wood and he's replacing this incompetent former manager robin perkins and therefore implicitly justifying his additional pay because he's making these great decisions well the fact is o a great idea and we have all these lower detention costs now so the court never addressed any of that evidence that i brought up in its opinion you totally ignored it or over looked at whatever words you want to use it just never consider that evidence at all and it's obvious that having considered it you could have only have ruled that this was a jury question so i have got a lot of time that i would like to say there is another claim here the cover records exception because there is no indication it was in the ordinary course of business and everything else i said library so that's also an issue this case should be reversed and remanded regardless the equal pay act claiming it should be for the following three key reasons number one this you quote correctly analyzed plaintiffs equal pay act claim and correctly concluded that the defendant did prove our burden on the from the defense on appeal pla argues doesn't argue about whether gary wood's paid was set by labor agreement that's pretty much undisputed what do you argues is that what we should have done is a huge his firm say hired somebody in a sour position i think that's a creative argument but i don't think there's any case law that i've seen interpreting either the equal pay act or title seven that allows control over employers decision to hire a certain type of job a classification had always been a management job up until woodward's slotted for the post so the answer is yes the prior employer player employee in that position was bob congress he was hired in the late seventy's and he left right around the time the plaintiff was hired and i think of address that point and i think one of the reasons why plaintive doesn't want to talk about bob converse is because bob converse completely undercuts repeat converse at the time he left eighty five thousand dollars after having thirty years of experience at the company robin perkins who less so after just four years was seventy eight thousand dollars the district court correctly concluded he had perkins stayed for just a few more years at rock ten with the rate of increases she was getting she would have eclipsed bob converses pay far sooner wood is a unionized employee no one argues that the labor agreement contains pretty generous in my opinion overtime provisions he got a deal you'll retire after eight hours and every day he got additional premium payments after twelve hours the day he get additional premium payments for saturday work and additional premium payments or something and no one is disputing that perkins did pick kerry wood to be in that step up leap position ok and is there a lea that is lead position that is held once would takes the position that perkins had correct so in that is excellent evidence that demonstrates that was a woman was a not correct and that's excellent evidence as to why gender had no office how much does the woman we've got i don't know monica the grands overall pain i do know that monocle the grand became a lead she got the first twelve and a half percent increase i also know that when she works in one's absence she gets that second twelve and a half percent increase she is treated exactly the same swings and i think that is harmful and undercuts plainness claim and demonstrates of the district court reached the agreement between the company and the union that was not a gratuitous payment that the company made just to would what is that second twelve percent for it is for it was for one gary wood was working as a step up lead in robin perkins's absence so your opponent was arguing that perkins did not approve that or author up is that because perkins had left as i think your opponent was saying or is it because it was just part of this suit be a or something i believe i believe the transcript and that the record indicates that perkins put his authorized that second twelve and a half percent increase even if assuming for the sake of argument pla is correct i don't think that gets him anywhere i don't think that imputes and anything was wrong to the district court's decision but then we need to know why was this second twelve percent provided and is there someplace that you would point us to in the record that and would is a vice president of the union with the authority to make the statement he testified the second was a negotiated agreement between the company and the the six circuit has said that you can't have portions of labor agreements that are not produced ready but are still labor agreements that was one of them and i also want to add that if this was somehow a gratuitous payment to would based on his gender that would have been an unfair labor practice charge companies are allowed to just simply give out increases on wages without you need approval and there's no evidence in the record that any u l p was filed or alleged by anyone is left when she resigned suddenly and abruptly the company put out a posting for that shipping superintendent position and within thirty forty days or so tom shannon who was working timeshare was the plant manager who was working with gary wood and customer service to hold the fort down realized things are working a lot better shipping detention costs are down we're able to control the work we really have no need for this position so it is is the lead acting in sort of a pseudo lead role of her and the brand is working when he's not available so what doesn't have the title that the pla it would be problematic as far as his classification as an employee correct and i think one of the other key points to buttress that is i know the district court gave this very short shrift we argued that was improper but it no point his he had any supervisory duties he could not set pay rates he could not discipline he could not hire you could not fire that is a massive distinction between what his role was and what rob what about the other aspect that your opponent argues about the rejection of the ideas of the plaintiff and the same ideas being gleefully accepted when presented by wood so i can address that even if you assume that that was true there is absolutely no evidence to demonstrate that that was an adverse employment action or that the basis for doing so was gender and i think that's fatal to that particular claim and the district court correctly concluded that it was is far as the notion goes that of the district court failed to address or consider that i don't believe that's accurate because if you look at page fifteen of the opinion the district court does of now which address and deal with those issues and one point i don't want to get was is that when robin perkins was asked what factors do you believe attributed her her disagreement with tom sheen not to gender not to anything like that she is she she characterized it as a disagreement about the utilization of resources in the plan and although she admitted that she only did not take her suggestions about how things should be wrong she did say look every time i asked the guy for overtime and for other changes he approved it in the bottom line is there's no evidence that the reason why shannon excepted would suggestions is because gender because it was in the record record is completely devoid of that and i think that undercuts plainness argument number two so to  speak does the record show that they each gave offense at the same idea as to how to deal with potential problems i don't believe the record shows that i believe it's more argument than it is record support i don't think we've got it down to that level of gra the biggest flaw in the e p a and title seven claim here is that plaintiff is quite simply making a apples to oranges comparison in that's between herself and kerry would i think if she had been able to identify a male shipping superintendent with the same level of experience and seniority who was paid much differently than she was she might have had a claim of the circumstances but she can't do that this is never this case in the district court correctly concluded that it was not the type of case that i do want to just one thing my opponent said in his brief about the fair labor standards act and the argument was would be clean and exempt employee when robin authorized to manage employees so that knocks out all the potential exemptions on a b f l a cent and he didn't do the type of work that would allow him to become a computer software exempt employee or professional player so to say that he was somehow transformed into one exempt employee but she was accepted right so and he was doing her work i don't agree that he was doing that the ven diagram so to speak of her working his overlapped to give she did supervisory work that he could not do but surely she didn't sit iran's banal or tap herring farand people i mean she was she was making sure that the work got done and that involves you know planning how the police department is going to go about doing things and he must have been doing the same thing unless mr shannon took that up on him self and its aims reasonable under the record to think that mr wood was doing that work so that so there was considerable overlap in their duties so i agree with your honor i agree there was overlap i also agree that shannon was doing the supervisory duties that perkins had formally done but i also want to point out that gary wood was doing union manual labor type work like the actual loading like the forklift driver and perkins said and never did that stuff and that makes sense to me because unions are very  to point out look manager you're doing you need work you can't do this so there was not complete overlap there was not complete even even those that record indicate what percent of woods time was the having labor when he took over as the i do want to spend a little bit of time my last remaining time addressing the cobra claim i think that it's clear that claim to deserve to be dismissed and is properly dismissed in our media brief we made the argument that the notices were sent out to the planet earth and that hearsay grounds wrecked i'm sorry so so the evidence that you presented initially was rejected and your opponent is arguing that it was improper do consider evidence attached to employ the six circuit law it was clear on this point sure you cannot raise new arguments in a reply brief that you have not raised in your main proof that's not what we did the argument had always been raised in the initial brief and we responded to what was in the response brief and that is absolutely appropriate under six just a couple of points the the difference advantage is wrong regarding the record the additional twelve per cent that mr wood got after he took over and replacing his perkins was not something that was negotiated it was not part of the collective bargaining agreement it was just an additional perquisite for the benefit of mr ward and the court actually never considered that argument by me because it basically threw it out on the grounds that robin perkins was the one who gave that which was absolute not supported by the record additional twelve percent came in after mr wood replaced so there were several additional twelve percent there was yes but  only after it would took over perkins so perkins couldn't have had anything to do with making that decision she was even there this is why it was and it reasonable for a jury to consider that as evidence of  court didn't even get there because it basically threw it out on the grounds that some perkins gave it to him which wasn't true at all the court also did not address the fact that the defendant gave you can almost take you dish on notice of that mr packer we've all been through that that those of us that have gotten gray hair at least know about well that's the point it still exists today that's of one to making and then finally the there is no they did not comply with the rule for the business record exception and it's methodically set forth by me and breezer basically nothing that it was what was going on before this guy came in and he can say that was in the ordinary course of business he said he didn't there's no informations affidavit that he got the information from something in the ordinary person business not it's not difficult to comply with that exception but