energy transfer partners  well this matter is an appeal from the grant of a summary judgment and the case being dismissed as a race discrimination case we what gave us pause your honors and what the reason why we brought the appeal is because in several ways we believe the court erred when it did not follow the mandate of rule fifty six of the federal civil procedure in that she did not grant reasonable or or consider reasonable inferences in favor of the nine movement movement which is my client and so your honors we would point out four different ways that we believe that occurred the first was that the court when it was evaluating the nexus between race based animus and and the actions that were taken against my client basically disregarded a wealth of circumstantial evidence that the united states supreme court and this this court this circuit has said it is relevant and it's it's can serve as the basis of an influence for a reasonable juror to look at and say if there was race discrimination what what evidence will we find in the record that will show us that your client was treated differently from  situated quiet employee well and so factually your honor there were there is several instances that are throughout the record in many different forms there in the form of audiotapes there in the form of written notes of a supervisor there in the form of e mails there in the form of actual corrective action forms that show that there was a marked difference a material difference in the way that my client supervisor treated him when it came to discipline as opposed to the similarly situated white gentleman and by way of just confidential context these gentlemen were batched were basically partners they were hired at the same time by the defendant they were tasked with doing the same thing they worked on the same ship they were essentially a tag team a pipe can pipeline controllers they had the same responsibilities i thought they had different setting that infraction aside i thought they had that your client had other disciplinary matter before that when the other person did not they were documented and so what this supervisor basically did is he kept notes he kept his own personal files on his these two employees and then on july nineteenth of twenty thirteen the incident that basically triggered him and made him go into these corrective action forms that are the basis of this lawsuit is that the two gentlemen showed up on their work days wearing a sentry the same thing sunglasses shorts and t shirts he took offense to that and you know it he said you can't come to a team meeting dress like this while it was on when it was on their off days and so they felt like they could what that supervisor then did was he went back and he looked at every instance in all of his notes that he had ever took exception to something that they did and he started writing up these corrective actions for so so it was it was corrective actions forms that were not handed out gradually over time based on the infractions occurring when they occurred it was basically documentation of these are all the problems that i've had with you guys significantly there are there instances in his note where the two gentlemen were reprimanded for you know and privately counsel for the same behavior and then when you get to the corrective action form the african american gentleman has that on his formal disciplinary action form the white gentleman does not there are instances where the same set of you know actions were taken as this should be written up in a the african americans corrective action form as this should be taken as a disrespect to myself and you know a violation of the rules it's a pattern of behavior when it comes to the white gentleman's corrective action format that type of language this completely absent  what essentially triggered this lawsuit was the fact that when that corrective action form was given out my client disagree with the contents of it but he actually signed off on that for this is back in july of twenty thirteen the white gentleman basically disagree with it and said i'm not signing this you know he basically i think part of supervisors note says that he basically got on really and said he's just not going to sign it he was allowed to go back to work no problem my client then embarked on a medical leave and upon his return in january he was given what appeared to be the same disciplinary action  documentation of those issues on it and he said hey i've already signed this why do i have to sign it again right he was told at that time that if he didn't sign it he'd be terminated and the basis of that terminations was was communicate him as you know there is a rule that exists there's a company policy that exists that you have to sign this you know corrective action form or you will be terminated and that the  undoubtedly come in and say that this was not a terminations it was a resignation but i think the district court looked at the same evidence that you will see in the record and decided it was a term a nation and so that's the adverse action and so after reviewing all of the evidence and the instances of just the differences between how these two gentlemen were treated this is what the district court wrote in its opinion says after rick after carefully reviewing appellants opposition and the rep whether appellant was treated differently from the way appellee treated boseman whether a police officer is creating an ex post facto policy and applied it only to appellant when he alleges leslie violated its rules and whether he was fired for objecting to and refusing to comply with the ex post facto facto policy which didn't exist and it says nevertheless appellant has failed to prove a key element of his cause of action that the alleged discriminatory treatment of him was based on his race that's where we find error because at the summary judgment stage as you all know the standard of proof is not that they have to actually meet their burden the standard of proof is that they have to  i agree with you on that point your honor my client agrees with you on that point if you look at the record what he actually said to the defendant was i don't have a problem being retrained in fact because of what you stated your honor he said i actually think the length of retraining that you guys are assigning to me maybe a little bit too short so he was willing to retrain for even a more six more extensive period so that's not the issue the issue is he was given a second corrective action for the same disciplinary action for which he had signed off on before well there's a long a great deal of difference between  i don't see how you blame any different treatment on the basis of the race of these two men  because the first things that they were asked to sign very different circumstances between that and certainly being off from work you would expect some sort of i see a problem and i agree i agree with you on and i think he did except the retraining aspect of it his problem was why was he being disciplined a second time and forced to not only discipline the second time for the same behavior forced to sign a piece of paper or be terminated that the white gentleman was not even you know forced to sign a first time around when he signed it the first time around and so and when you say that there they were vastly different  circumstances your honor actually they were a centrally identical i think the district court found that they were identical basically so instances of behavior that they were disciplined for i was not only the attire but there was an instance where both mr bowles men and mr mr mitchell missed a communications between one piece of equipment in the pipeline in one hand and the other that they were both tasks which monitoring they both missed it it shows up in mr mitchell's disciplinary action form it doesn't show up in mr boesmans but at the same time in in this supervisor's notes that he kept over time there is a clear reference that hey i counsel privately both of these gentleman for missing that you know piece of that communication on the pipeline and this is their task and i missed it i thought your client had more severe attendance problems that he had missed a lot more work he had attendants issues but sold it mr bozeman they were different types of attendance issues what was documented as far as attendance for mr balls means that it was that he took breaks for too long he took frequent breaks he took too many breaks he wasn't at his pulse and what was documented for my client was you know he overstate some of his absences sick absences and so you're right your honor those are you know different they depart in fact that those are different types of behaviors but i would submit to the court that those are the only behaviors there were different between mr postman and mr mr mitchell on memories not because it should be but i thought when i read the other correctly looked at and saw some dissimilarities in the way we treat it is that you know there are there are transcripts of the audio tapes where he basically says i'm ok with being retrying i just i think it's this is too short of a period time i'm not comfortable with whatever was the six weeks that they told him he had to retrain and so the notion that he was terminated because he didn't want to retrain is just the court applied the same actor inference but then disregarded circumstantial evidence that the supreme court and the fifth circuit has said is is something that should be considered in order to  sufficiently angry just conduct things like firing a person for not complying with a policy that doesn't exist at the time you fired and forced them based on a policy or things like  double disciplining somebody and forcing the sign a disciplinary action form that another gentleman was not even forced to sign the first time around those are the type of things that you know if it looks like a duck and quacks like a duck duck it's it's it's dissimilar treatment for which a reasonable juror could look at that and say the same act or inference is rebutted in this circumstance and the judge actually made that determination and it should have been left to the jury to do and one other point on the same after inference and i've got twenty five seconds and i'll sit down is that it doesn't even apply procedurally to this case the guy who supposedly hired him was a different guy from the supervisor who kept these may please the court my name is kelly edwards i'm counsel for the actually energy transfer partners the record before this court supports an affirmation of the district court to grant a summary judgment for three primary reasons each of which i will address in turn first the undisputed evidence demonstrates mr mitchell did not suffer an adverse employment action as a matter of law because he made a conscious decision to end his employment under circumstances that did not rise to the level of a constructive discharge second there is no evidence in the record of disparate treatment under the precedent set by the circuit and third there is no other evidence in the record suggesting the company's actions were a pretext for race discrimination particularly in light of the same actor inference which does apply in this case first we believe the district court's calling it a summary judgment should be affirmed honest appeal because the record demonstrates that mr mitchell's employment ended under circumstances that did not amount to an adverse employment action as a matter of law as a preliminary matter there can be no dispute as to whether the july twenty third team corrective action issued to mr mitchell was an adverse employment action itself counsel reference that corrective action and i know i think it's important to address it even at this stage in the circuit has held that disciplinary warnings without attendant changes in the terms and conditions of employment do not constitute adverse employment action and so to the extent that he alleges that the first corrective action that he received in july and thirteen is an adverse employment action i think i believe that's unsupported by the law of this circuit furthermore with respect to the end of mr mitchell's employment as the record demonstrates when it mitchell refused to do so was that different from the form he had signed a few months before the the actual form itself so the actual communication upon his return to work was documented in the same basic form the title of the form was corrective action but the record is clear that the employer never intended it to be a corrective action in a disciplinary sense my question was were the two forms the same or really not  the two forms before they were filled out by the supervisor were the same form that's correct i'm sorry i may have misunderstood your question judged smith when he returned to work it was a new form with new language it wasn't in essence the same form he was given back in july and thirteen that he was asked to sign again it was a brand new document with a new new communication new language on that document presented to mr mitchell referred to prior incident it referred to the fact that he had been counseled previously for disciplinary issues and so if you if you view the document itself which is in the record the document states at the top that the purpose of the report and this is on page one ninety three of the record is to reinforce the expectation that concerns listed in the written corrective action form presenting to frederick on july the nineteenth two thousand and thirteen have been corrected and to set the expectation for frederick's retraining and requalification upon his return to work and that was the different purpose of that form for senate a civically reference to the prior incident it did specifically referenced the fact that he had received a corrective action in july of two thousand and thirteen and it also specifically referenced the fact that the purpose of that was to reiterate that he did have these performance concerns and that the company expected him to behave in a manner that was consistent with their expectation mitchell because of the retraining and requalification requirement and and told him repeatedly that in order to come back to work that he would need to sign the form and he acknowledges and at page one seventy one of the record that he understood that his future employment at the company depended on whether or not he signed the form yet he chose not to sign it in choosing to end his employment the evidence in the record demonstrates that had mr mitchell not made the conscious decision not to sign the form it issued that his employment would not have ended the only evidence in the record shows that the company assume mr mitchell would return to work and the only reason that he did not is because he himself chose to take an action that he knew would end his employment and so because the record evidence shows that under these facts this was a voluntary terminations a voluntary of his employment a job abandonment if you well mr mitchell can only demonstrate an adverse action if he can show that he was constructively discharge and that is that his employment and it under conditions so intolerable that any reasonable employer would would feel compelled to resign in this case there is no evidence of a traditional constructed discharge circumstance there's a constructive discharge raised  disputes that it was a constructive discharge his mr mitchell's the parents position is that this was a terminations so i think there is a difference as to the characterization of of the facts and his his allegation is that this was an adverse employment action because it was an involuntary terminations our position is that the facts demonstrate it was not an involuntary terminations in fact it was a voluntary terminations and so therefore the proper analysis is under this court constructive discharge line of cases and even in those cases this court has imposed and repeatedly that that is viewed through the lens of a reasonable employee so what a reasonable employee would have done under the circumstances and this court has found that there is no constructive discharge when a reasonable employee would have taken another action to resolve his employment concerns before merely quitting even in cases where employers have given employees an ultimatum to quit or be fired the circuit has required something beyond that employee subjective belief that terminations was inevitable in order to find a constructive discharge for example in the case in which the court found a constructive discharge there was evidence that the plaintiff supervisor told him that he should look for another job and then in a week's time he would be placed on an indefinite leave of absence there was no such message to mitchell in this case from his supervisors or anyone else nor was there any other evidence of the of the typical circumstances surrounding a constructive just charge situations where there's a reassignment or reduction in responsibilities harassment things of that nature and i think in that way our case is very similar to the case presented to this court last year in caldwell versus lozano in which the employee r instead of responding to his employers notice that they would terminate him if unless he presented additional facts or to rebut their suggestion that he had committed a terminal offense and the cardwell court found that there was no adverse action because the plaintiff did not take advantage of a reasonable opportunity afforded to him by his employer to take actions to possibly avoid terminations just as in that case here mr mitchell failed to take reasonable steps to avoid his terminations of employment and for that reason we believe this court should find that mr mitchell suffered no adverse employment action as a matter of law and affirmed the district court's ruling but even if this court finds that there is an issue of fact as to whether mitchell suffered an adverse employment action summary judgment is still appropriate on the company's behalf because there is no evidence that mitchell was treated less favorably than similarly situated individuals outside of his protected class and now appellant argues as he did just a few moments ago that he and another employee charles bozeman were similarly situated because they were coworkers who received written discipline for similar conduct issues displayed in the workplace and i do want to address the appellant's point about the corrective action forms because he would have you believe that these two employees committed identical workplace violations and yet there corrective action forms no differences and that's simply not supported by the evidence in the record the other employee though wasn't even required to sign the form or at least he declined to sign that's correct judge smith and that's because there was no policy at the company requiring an employee to sign a corrective action form for disciplinary reasons with respect to this particular instance if we want to isolate the july two thousand and thirteen corrective action forms to the extent that the appellant is arguing that that somehow those differences in corrective actions were inappropriate i don't think that is supported by the evidence in the record because as judge you and recollected there were differences in the behaviors of these two employees albeit similar mr mitchell had more egregious violations he had attendance issues at the company meeting in question both employees showed up wearing sunglasses but mr mitchell took kept his sunglasses on for the entire meeting while while mr bozeman was not and that was appropriately reflected in these two corrective action forms likewise on on that and the day in question in which these two mr critical communication in the pipeline control center mr mitchell was found playing games on his phone while mr bozeman was attending to the control center and so while both of them missed collectively a critical communication mr mitchell clearly engaged in a greater degree of misconduct in the workplace because he was completely ignoring the control centers while he was on the phone and so my point is that any differences in these  two thousand and thirteen corrective actions were a appropriately reflective of the differences in the that the misconduct between the two employees at the time fasting forward if you will to the separation of employment of employment mr mitchell would have this court believe that the two were similarly situated because mr bozeman received a corrective action in july and was not required to sign it mr mitchell instead was required to sign a correct a a notice that was presented on a disc on a corrective action form upon his return to work but the difference is and i think it's a critical difference and one that this court should recognize under its jurisprudence is that bozeman never refused to sign a retraining and reach qualification requirement in a cracked of action form or in any other form in any other written form and mitchell did this court has recognized repeatedly that for two employees to be similarly situated they must be employed under nearly identical circumstances and that the critical analysis in this inquiry is that the plaintiff conduct that drew the adverse employment decision is the he factual distinction in this case mr mitchell's employment and it not because of any prior disciplinary issues or any reminder of those disciplinary issues but because he refused to sign a document confirming his agreement to the company's retraining and re operator qualifying requirement following his return from leave and because there is no evidence in the record that bozeman refused to sign a retraining and re operator qualifying requirement there any evidence that mitchell was treated differently than any other individual who refused to sign such a requirement summary judgment on energy transfers part should be affirmed and i do want to address one point that the court record raised in the argument and that is about mr mitchell's statement to the company that he did not agree to the retraining and requalification requirement that evidence are in the record i think it is clear in several places that mr expressed some doubt or some level of disagreement with the company's requirement that he retrain and requalify when he came back from leave at first he said well i'll retrain but i don't agree that it should be within thirty days i think it should be longer than that and the company made it clear that they needed him to acknowledge his agreement to retrain within the requisite time the requisite time period then he then he came back and said well i'll agree to retrain but i don't agree to requalify and then there's another instance in the record where he said well i'll agree to retrain on the new systems but not on the entire system and i think this emphasizes why the company had took the position that he needed to sign an acknowledgement of the training and really operator qualifying requirement upon his return from leave and the remainder of my time i'd like to address why summary judgment should be affirmed because there is no evidence in the record to overcome energy transfers legitimate nondiscriminatory reason for mitchell's employment separation and that is that he refused to sign a document acknowledging the expectations the company had for his continued employment in order to overcome this stated reason as the court knows mitchell must produce substantial evidence indicating that the company's stated reason is a pretext for discrimination either through evidence of disparate treatment or by showing that the employer's explanation is false or unworthy of credence as just as discussed just a moment ago mitchell has no evidence of disparate treatment because he can't identify anyone else who was terminated or who suffered in employment law for refusing to sign a retraining ryall parade or qualifying requirement furthermore mitchell admits that he didn't sign the document presented to him and for that reason he cannot claim the company's stated reason for the employment is false mr mitchell's only other evidence a pretext if i'm understanding the argument correctly is that the company created a policy and applied it only to him in an effort to discriminate against him and while that's a colorful theory it's simply unsupported by the facts in the record the only evidence on the contrary is that the company was motivated by safety concerns and acted in accordance with the obligations imposed by it by the pipeline and hazardous material safety administration which requires the company to ensure that its pipeline controllers are appropriately trained and qualified and actually imposes an obligation upon the company to evaluate and individual if the operator has reason to believe that the individual is no longer qualified to perform a cover task and that's quoted from forty nine c f r one ninety five point five five that was the motivation for the company's reason to institute this retraining and operator qualifying requirement after mitchell had missed work for over twenty commanded that particular regulation it's in our record the citation to the to the regulation is in our record as is a statement from the supervisor explaining that that regulation controls their business and their rationale for why they adopted that safety requirement that retraining require requirement and also documented in the record is the company's careful decision and thoughtful decision that this policy of retraining and re operator qualifying was to apply to any records state is that the same manager who hired mitchell is the one that mitchell is alleging of discrimination now my my friend on the other side suggested otherwise to the court a few moments ago and that's that was the first time i've heard such an allegation because from the very beginning mr mitchell himself has presented and claimed that both christopher love was the same person who hired him and who was ultimately responsible for the end of of mr mitchell's employment to the extent it was an involuntary terminations certainly he was involved in the circumstances surrounding the separation of employment at issue here in light of this inference mitchell must produce scuse me sufficiently agree jess facts to explain why these managers were motivated by discrimination and there simply is no such evidence in this record there is none of the traditional eviden that one might be to support a claim for race discrimination there's no allegation of racial comments there's no other allegation of of any other individual that was inside mr mitchell's protected class being treated less favorably than others court's opinion the the court says in its opinion on page thirty eight which is in the record at record site for fifty one she she says she wrote although energy transfer claims that mitchell voluntarily resigned energy's internal documents include communications among its employees involved in mitchell's terminations expressly using the term and she got in quote terminations and she cites the e mails that we supplied on summary judgment existed at the time and so this isn't an instance where we're alleging that there was a policy that was created that it was created just for him there was no policy right and i think policy when we deposed the corporate representatives of energy transfer what they told us and it was in the record as well and summary judgment is that not only was there no policy at that point there was no policy when they were lying to my client in sand it was a policy  this is why they were terminated because he was violating company policy we're not signing this particular piece of paper and so i think the record is clear in the court decided below that this was an adverse employment action  e the other thing that i just like to point out to the court is that there's never been an allegation on our part that there was a constructive discharge and so to the extent that that was even raised as it as a potential  allegation in the court's opinion that's something that just kind of came up out of i frankly don't know where because we've never made the allegation we've always said based on the audiotape and the e mails that we had things of that nature that he was terminated as a result of not fox signing this piece of paper asked for the the same actor inference there is and i don't just read from appelle the appellee itself outlines that the person who were alleging was had a racial animus against our client was a supervisor by the last name love that person is clearly stated in the brief as not being the person who hired mr mitchell that's another individual with the last name chambers and the person who terminated mr mitchell was in either of those two a person by last name a follower and so these the notion that the same actor inference applies from a purely legal and procedural standpoint it was a mishap with cation in the first place and to the extent it did ply did apply in the court found that it did apply based on a reading of the record there was sufficient agree just sufficiently agree just behavior lying to him about the existence of policies that didn't exist and things of that nature for a reasonable and you were to look at that and say the reason and the justification for terminating him was false and as our supreme court as the fifth circuit has as instructed us false justifications for taking adverse employment such actions can be a basis for a finding of discrimination with that being said your honors i appreciate time and considering my client's appeal and reacts that based on the record and everything within it that you will see that you would reverse the ruling of the district court and render a denial of this summary judgment motion and remain to the district court for further proceedings or thank you mr armstrong your case under submission