they ship unveiled because these defendant's actions were not objectively unreasonable in the qualified immunity analysis the sole remaining cause of action as to these two defendants is a fourteenth amendment equal protection  has prior private sector job experience cannot be compared to simply because employees may have some overlapping duties does not make you compare who were in last having a coma ploys hired at a different turn in a certain context can make a couple wait not in compared to and what's important in this case is if any one of those differences standing alone would make a call employee certainly a plausible argument you're making except blame the other side the plaintiffs say look i mean all of these differences that you're certain about titles and work that is different  has no real meaning and it's all just made up because we're all in this thing together and it's totally and i change and that's an argument they make you know out of that is the argument and what we're here before this court on and i seems like a jury  question to me here are our position on that is the this is we're bringing before this court the undisputed facts in the undisputed facts in this case is the plaintiffs the plaintiff's own testimony the a deposition and nominally a supervisor but nonetheless mr devlin was in hilda a supervisory position at all relevant to the plaintiff was never a supervisor open for any supervisory functions for the city of m dabbling in his job as three supervisor he had duties of supervising street projects planning street projects and captivating what needs are necessary purchases that sort of things for street project the plaintiff never performed any of those functions the plaintiff testified in was aware that mr de havilland had twenty years of prior experience in the private sector operating a motor carrier motor graders which used to build the story that mr bevan never perform those job losses a plane of testify that he alone had certain duties that pertain to the public library community center again mr babbitt never had those shelby's in summary mr babington with a supervisor he had different job duties and responsibilities he had a different background in training and experience than the point the same is true with mr her and before you leave have accused me there is some evidence that would create a fact question of whether when he stored work he was yet the street superintendent aware of that something that came later he wasn't called street superintendent  minutes of the city council or whatever it is and the mayor at the time said he did the duties it seems to me of what a street superintendent later may be doing you know you reaction to that evidence is it at least on one say that you other evidence would not be sufficient but isn't there a least a fact question about when daven actually became street to menton and as opposed to just having duties in the street department  and here's the reason why this court in president has made very clear that when we look at the context of every case to look at who is a comparative or under the differences i previously discussed one of the things that we d do is we just we don't look at a title and you say well the title itself we do it what does that employee do what functions does that a poorly perform what is that employee's job qualifications and experience that is your fact question of that even though you would say don't worry about it your honor i don't believe there's a fact question because the testimony and evidence is mr that the job duties and functions i just described are what mr devlin has done for the city since  he did he did take a it's a small town and he took an involvement in in helping with street projects but that doesn't take away from the fact that mr dappling his training his experience his qualifications what he does by the plaintiff's own testimony is worlds of difference between the two the same the same is true for mr her male there's one thing about mr hurd i'll come back to in just a moment but i think it's important too to point this out mr hurd worked for the city mr mr mitchell had a background in normal plumbing electrician kind of handyman type type work and mr hurd had a background as a certified welder also mr hurd of had twenty five years of prior experience in the operation of heavy equipment including a motor greater in fact when he was there only that for months one of the things he did is he built in the pad and did other things with the motor grader to help the city of naples build a fire station of the same thing with mr devlin as mr hurd the plaintiff testified that he alone performed sewer water leaks did certain functions that mr hurd did not perform a twenty thirteen case and the this court in that case found that the plaintiff was not a a or the co employee was not a comparative or to the plaintiff based on one single distinction and that distinction was the plaintiff had a background in carpentry and the alleged compared to or had a background in plumbing that distinction alone that background training was the was the factor that they have made the  or in in fields versus stephen f austin which is a twenty sixteen case each other to plaintiffs in that case and they named multiple complera tours and they were all drivers in the university system shuttle bus drivers bus drivers and the court examined not only just their driving but what did they do also some of the drivers head of had some mechanics experience some drivers operated equipment that ha alex but there were there were these other duties in addition to their driving duties that made them not compare tours to the two plaintiffs and last just a couple weeks ago in the mississippi valley  e case which i submitted a letter brief on last week the court there found there were two key differences two key differences between the plaintiff and the alleged compar and the two differences where the yes the alleged compared to what was hired seven years after the plaintiff and the alleged compared to or head different private sector experience and those factors alone were sufficient to find that the cohen ploys were not compared to wars going on or in this case we we have shown with and disputed evidence that mr de havilland and mr hurd did not have the same job responsibilities as the plaintiff had different private sector experience and our position is as a matter of law in a submit to the court the frasier versus sabine river case where in time are compared to what was discussed a submit to the court that mr hurd as a matter of law cannot be compared to or for the simple reason that any pay disparity that existed between the plaintiff and mr hurd occurred over form one half years prior to filing suit to the extent mr hurd is being offered for some other reason that he's being to show a pattern and practice this circuit it has a long precedent in that pattern and practice evidence may not be used in a lawsuit that is not a class action in an individual case like this pattern of practice evidence is is not permitted the plaintiff aside it's in cases some fourth and eighth circuit cases that do allow some background complera tours that are outside the limitations i submit to the court immunity in a just a couple weeks ago our supreme court told us that courts are not to define clearly establish law at a high level of general generality that if a court does engage in generality doing so avoids the crucial question of whether the offish official acted reasonably in a in the particular circumstances that he or she faced and your honor i submit to the court that's exactly what the district court did in this case in gauging generality in fact the court's memorandum opinion says this there is no serious argument about whether the right to be free from discrimination in the terms of condition and employment was clearly it was a clearly established right i agree with that that is a clearly established right but what the district court did not do is look at this case individually for mayor mills and individually for mayor chart here and do that appropriate qualified immunity analysis and we submit your honor that  that analysis had been done that as we put it in the brief that with respect to the allegations against the defendant mills and defend it chartier that the law was not clearly established under the specific context of this  case your honor we believe that none of the actions complained of about the plaintiff in this lawsuit demonstrated that either defendant acted unreasonably in the specific context and we would ask the court to review this matter that under the  specifics of the context the case for qualified immunity like the court i want to say first addressed the issue on the statute of limitations issue that defense counsel raised this is not a pass and pakistanis in any way the issue is so many whether or evidence outside the is it fair to say though that you have not found any fifth circuit case directly on point it is fair to say that defense cases don't hold that  who also worked out some limitations period so that's not a question of when the settlement ations you cannot evidence that simply they couldn't bring that plane because they were alleging discrimination totally outside of that period plant every day they were connecting and disconnecting certain service or gentle hand but for all those duties none of the qualifications which defendant has talked about are relevant and mine and he had experience i saw electrical and plumbing but did not apply those in terms of of the job in a regular counted way and when it seems that  just line it up that herd is clearly the superior person in terms of his employment market and the same thing would be true with dabbling i mean he was just street supervisory responsibilities included supervising and although you say that was not there often that he supervised operated the motor grader at twenty years experience from a previous job  mining company yeah operated that lay down machine and you saw a person authorized to ride the loan because of some kind of accepted earlier had and then you compare that to know i mean is it just seems like that's part of the comparative expense to not be determined but it is part of the come on the comparative analysis the case of one versus was somewhat spotty reactor at which is basically a very large horror flick that can raise up to two of the stories in addition he had already worked for the city for five years at the time that that was hired and so by the time after she yes that's the license that you need to be able to operate oversize the bulls and nobody else on the scene his work through the public works department how that and again that was the only reason after that point in what happened on that day the change situation there's no evidence in the record that mitchell was responsible for any accident with the writing nor who wa the is don't show that mitchell was not similarly situated he was compared to us and mitchell's experience at the city is also relevant this is not the case in the i like to briefly address the argument that about mr hurd being a term or comparative i didn't mention this earlier you know if we do things if we look at the facts in this case and if the plane had brought this lawsuit based solely on earth as compared to war there's no question the claim would be barred by the statue of limitations and the plaintiff is that the cause of action is a fourteenth amendment equal protection claim if they haven't it wasn't a picture we we wouldn't have a policy and so the only reason herd is being inserted into this lawsuit is to try to use some pattern of practice evidence which is which is prohibited i would also submit the following policy naples we had an entirely different city council we have entirely different budget we had entirely different economic conditions we entirely different tax base and so to go back beyond statute of limitations in a case like this would wreck havoc on comparison because you have to look at all these factors plus the factors that you would normally associate with the statute of limitations argument witnesses being gone or the city's retention of documents all those sorts of things if there's  good policy reasons too to have a finding that a plaintiff's pay disparity cloying of the plaintiffs pay and the comparative worst pay must be within the stated limitations period otherwise for the reasons i've talked about it it just doesn't work there are just very briefly about jurisdiction we have in our record before this court we have things they can only made efforts to present to the court  similarly situated compared to where this court obviously has jurisdiction to hear this appeal the plaintiff's argument in their brief in in here briefly today was that an argument that this court does not have jurisdiction changed or altered the pay of mr mitchell nor since his time in office from may twenty third thing president never changed the pay or alter the pay of any other employee it was the city council that made the pay to serve the terminations so my question is the us under the specific analysis of qualified immunity that we were instructed to to could make a determination and clearly establish law and whether that conduct was objective be reasonable in the specific