good morning may it please the court this case centers upon the hospital's terminations and its contractual relationship with the staffing company because the staffing company on multiple occasions sent a qualified african american prep cook to work in the hospital kitchen after the hospital staff on multiple occasions had requested only it and hispanic workers methodist hospital seeks to avoid any liability on account of its discriminatory acts by arguing st that white as a non and one the sole issue for the court is whether white glove as a non minority in the business has statutory standing to bring in discrimination glee while several other circuits in particular to varying standards to date neither the th circuit nor the supreme court have addressed the issue of the circuits that have addressed the issue the d c circuit in th circuit have adopted the best reasoned approach which is that if a corporation can suffer harm from discrimination it has standing to litigate that or that's  issues presented here one whether title seven's purpose in the opposition requirement applies to a non employment related claim brought under section one thousand and one dollars in even if it does apply whether a reasonable jury could find that  to make in force contracts to subi parties give evidence into the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and there was an act of over a one hundred years ago with the supreme court and domin said that this means is that a six hundred and eighty one functions as follows it protects the equal right of all persons to make enforce contracts without respect to race justice scalia went on in that opinion to explain that the court has never retreat from what should be obvious from reading the text of the statute section one thousand and eighty one dollars offers a release on racial discrimination blocks the creation of a contractual relationship as well as when it impairs an existing contractual relationship so long as the plaintiff has or the depositions he was here on i don't know at least a mapping this is shocking that they're keeping someone that's discriminating regardless of whether you have standing to raise it it's just a shocking thing that this is going on and that they were maintaining the chef in their employment after he's made such comments but that's neither here nor there yes your case it suggests intelligent person and i'm speaking for a panel of the d c circuit explained that the determination whether a corporation has a racial identity is not determinative of whether that corporation has standing to make a discrimination claim rather than assume that racial identity is a predicate to discriminatory harm we might better approach the problem by assuming that if a corporation can suffer recovery probably with a different damages be so there's multiple nuances to that question st under dominoes embodied by cook in several cases in ingerson the individual plaintiff did not have standing to bring the claim because it wasn't their get paid if you're sent out for a day as it was so the staffing company that is the unique nuance here younger see if she is an employee is not an out for it couple days maybe that's a trait she would recover yes you i mean there's an additional issue that since it's a staffing company white will very well could have sent her to another job the next day and her damages for this discrimination are very much recent buy clothes out a huge contract has multiple employees going to make itself so there's you know it wasn't addressed below methods never challenge whether she had seen anyone i think in the questions if she did but she technically has her relationship with white glove and into supplanted making money based on them and she's still with them or at least she stayed with them some time after th so again i don't know that today in the records a little fuzzy i believe that she eventually moved to kansas city doesn't work for them any longer but they didn't fire her and one nigger i don't believe that's in the records at all that case right i don't believe it was even if it was i search nine hundred and eighty one and pop up in the case of how i didn't see where it was and play what was implied was the th amendment and there could be a difference in construing a us supreme court opinion footnote one they actually cite that discussion they say since the company settled its claims and is not involved in this case we have no occasion to determine whether as a corporation it could have brought suit under section one thousand and eighty one and we note however until felt the better approach the problem was to assume that racial identity is it is is not to assume that racial identity is a predicate to could discriminatory harm rather look at whether the corporation suffered harm and then he even he said a present from the supreme court th plaintiffs had standing to sue under section one thousand nine hundred and one where that white planted was terminated as an employee because of the race of the employee spouse the case that he's just until sutton's for aka versus clements which is cite soleil because an individual associated with c a side was jewish judged intelligence a because the president was jewish is as an individual associated with c s i was jewish in reaching this decision the court specifically noted that whether gerson was the president did not matter because he says that his analysis would be no different if gentile shareholders own c s i and j j ended the contractual relationship because the corporation had a single jewish employee so virtually limited adopted the gerson standard and found that a corporation has standing to assert discrimination claims under section one thousand nine hundred and one where such discrimination is based on the race of one of the corporation's employees again not focusing on shareholders or president or impeded racial standard and they hold that if a corporation either suffers discrimination harm cognizable under section one thousand nine hundred and one or has acquired an imputed racial identity is sufficiently within the statutory zone of interest to have prodigious standing so in the same decision the th circuit later clarifies that later imputed racial identity is not required to bring a claim after discussing person and it says that an independent as an independent standing rationale when a corporation appeal is whether white glove purposely opposed methodist discriminatory behavior as an initial matter the court need not even reach that question because purpose of opposition is not a necessary element of retaliation claim under section one thousand and one dollars purpose of opposition comes from the text of title seven and should not be read into what we've repeatedly said that ninety one in title seven should be read parallel and that's why you know mcdonnell douglas gets imported into nine hundred and eighty one there's a number of cases saying they should be read available then miss clay doesn't have an opportunity to work for a white living where she has to find other work and she does she needs to but i don't know that how does that harm waikoloa that's where she would have a new you're earlier discussion with judge cost about what her standing was if she lost her job because they didn't have anywhere else to send her then that's where she would abstaining but how does that hurt them differently than losing the contract with methodist move i guess to the nd part of that you focus on the protected activity it's its history there's a problem with causation because i mean you have to if you have standing on the st issue you have a pretty strong case of discrimination but they said from the ge letter sent a spanish to the kitchen so it just seems that bats from the beginning it was a racial discrimination issue how can you then show it was it was but a but for retaliation issue it's because it was a white glove sent her out we're not talking about this case specifically i'm talking again overarching legal principles here why should we have an element for individuals under some title under ninety three that is not present in retaliation claims that are not  a person has not been able to assert the rights of rd parties however in this instance courts circuit courts have recognized two americas options the st as where a corporation obtains the imputed racial identity of it they're seeking to recover for their own injury i mean their damages would focus on their loss of contract not not miss clay's lost wages your honor simply because they have a damage does not mean that it's that they have a cause of action  party standing is typically the most classic case of an abortion we know that a doctor or a clinic is asserting the rights of the woman seeking an abortion but here in the there that the company is the one that lost the contract they're seeking to vindicate something that happened directly to them yes you know and i think that you touched on something during the earlier argument as to whether this is best character is a retaliation claim or a discrimination claim i think when we look at the factual circumstances this is really was hellish and claim and i will say that they deny gage and productive activity that would support that but if we look at the fox they're alleging not that white glove or its shareholders or discriminated against but they s discriminated against in this and still they were discriminated against for daring to hire an african american and send her to a job she was qualified for isn't that core discrimination respectfully your honor i was disagreeing i believe that the fact that methodist was continuing to engage in contract negotiations with white glove with knowledge that they had an african american employee and again this is a assuming that this alleged toward discriminate part discriminatory remarks were made shows that they comments that were made about scribes but again it's not just do you agree it's pretty disturbing that methodist hospital would be employing a chef like that yes your honor and we yes and we do not believe those remarks were actually made ok and so then why did they not want miss clay you're out of the kitchen is a soft performing environment and what happened is sometimes we've got temporary employees that come in and for whatever reason they can't keep up and you know it a lot of times they're brought in for catering or for cooking or it you know you've got a lot of different stations a very large facility that it's servicing patients and servicing visitors and so it is a very it's a difficult job but we're not here to talk about the fact fifty eight a for defiant person to include corporations yes your honor so it is a person without a racially dennehy and so therefore it cannot be the target of discrimination based upon a racially dennehy however circuit courts have identity to see one hundred and ninety one because the english of the tykes is to make it in force contracts free from being the target of discrimination to be the target of discrimination you have to have a racially is in any you not believe that he was not raised talking about the th amendment if the th amendment had solved all racial discrimination problems we wouldn't need these multitude of statutes that have been passed ever since so there has to be some other because i believe the observation stands true that to be the target of discrimination you have to have a racially dennehy now corporation can obtain an imputed racial identity and courts have recognized that what percentage of shareholders have to be of a certain race or that the judge didn't tell us so that's a tricky business to get into yes an honor but i believe that what we can see and again this is really into the domino's pizza observation that we have a corporation we're presented with a tricky situation because a corporation can't be discriminated against because it's certified as a minority owned business it's not a majority of shareholders it's discriminated against because someone sees a company as having a person with  john i respectfully disagree i believe that this is more akin to his tele ition case which they do not hot to do not actually show but the discrimination that occurred was against clay clay was sent home and told and apparently white glove which someone that is african american now st of all i will say that there's no court that has said that and i'm a corporation can be discrimination can scuse me can assert in one thousand and one discrimination claim based upon the race of a single employee company the value of the merit of hiring someone is sending them out to do the work so you saying well hire all the african americans you want just don't send them to our restaurant or our cafeteria that to me seems like the same thing i mean there's no it when you're talking about a temporary staffing agency they have no independent job they don't have their own cafeteria to put the person in they're sending them out to places that need help it's it's a busy time  methodist let's say in their cafeterias overwhelmed or somebody is on leave or something and they need a replacement that's what temporary staffing does they fill those needs when someone a permanent poison leave and so forth if they can't fill those needs because let's say everybody in dallas said we only want people of x race not y race then they would never be able to send a person of y race anywhere that's the problem right yes your honor but i think that the the remedy is contract i mean meth is hospitals a big place presumably they're constantly employing temporary staffing because they're probably constantly having people on leave in and out and whatever somebody's sick and so forth and yet the needs of the cafeteria in a hospital continue to be intense so that's a big contract they lost miss clay maybe the next day went somewhere else and so she may or may not have lost anything but her loss is not the same as their loss how can you explain how can you different how can you explain that i was sick of those harms are remedial i'm sorry can be remedied the discrimination claim would be asserted by clay why flip would have a cause of action for sending out if they had an african american employee in opposition to the allegedly racist reclast so both there is it really for both sides in this transaction like love was not discriminated against clay was  discriminated against and it did not act in purpose of opposition to the allegedly discriminatory demands it was supplying your honor if we look at it as cut them off here under your theory of retaliation that's not purpose because and this is something that was looked at as a search warrant the st time that they sent out it was because she was the only employee available the nd time they sent her out is because they looked to try and find a hispanic employee there was available but because they could not is still get the contract by saying all will do what you want we want to keep you happy your potential big customer and other times it does seem like they're saying well but you're so you're doing is wrong i can't i can't believe you're saying this or something to that effect so if there's these two competing inferences about what they action in opposition to what the discriminatory conduct that's taking place and stray remarks are not sufficient and that's why when we're looking at purpose of opposition but sending send in the african american when you've been told don't do that why isn't that opposition to this discriminatory proctors because what he's by their own admission that was not done as an ox of opposition but because she was the only available employee as this court and illustrated in his decision of ears to you versus right way and determining whether there is purpose of opposition this is a fact specific inquiry and we're looking at the context in the setting in which the white glove had a majority stock shares owned by african americans that you think they do would have a discrimination claim i believe it would be a two part inquiry st it would be whether they have a majority  stock or whether they are minority owned and secondly whether that was the basis for the discriminatory conduct and body by cook this court recognized the imputed racial identity exception that was read a corporation to dollars me one hundred percent african american excuse me african american owned body shop and that it was alleged it was discriminated against on that racial basis so it's not only that not discrimination has to be about the ownership of the company and the situation well and so with corporations when you have a one hundred percent so the shareholder issue is a unique one because essentially the corporation is being discriminated against because i corporation to assert that discrimination based upon mr cooke in that situation because his race was imputed to the corporation and that is why the corporations suffered damages and now the it's a little strange to say i mean these statutes are focusing primarily on discrimination the retaliation sort of you know was added on later because that's prophylactic to protect that the anti discrimination provisions is a little strange to say you can bring retaliation but not discrimination i don't have any other situation where that would be true yes your honor and i would just reiterate that to be asserted discrimination claim one has to be discriminated association discrimination which has been recognizes this association description because wife was not entering into a contract with you he said me only hispanic employee because why pope was not discriminated against based upon its association with an african american employee it was just it was the discrimination was suffered by play the contracts or was that the target at the discrimination it was clay and that's where the harm can be record shows but that's the allegation now you might differ on the facts but the the allegation is that they worked was told by methodist we only want hispanic employees if they're multiple times and when they didn't send only employer hispanic employees they took into contract discussion now why isn't that purposeful discrimination based on rice and contracting practic i believe that the only discrimination was directed at the only racial discrimination was against clay there is no racial discrimination based upon it that would have entered into the contract with white and it's rejected everybody that was a hispanic but kept the claim you must be the target of the discrimination or based upon your socio with someone of a certain racial minority to assert that a company age in a certain race is going to asian just because it employs just their employees suffered right i mean that's you allegation you don't agree with it that is the allegation the allegation is they lost the contract because they would not comply with why with before my argument about purpose of opposition i mean i don't and that is there's no there's a fact question whether it was purpose of opposition here the fact that no one else was available cannot be the deciding factor  opposition if they sent the hispanic out instead well there's a very good chance and no that is not a person who's purpose of opposition but here we could we don't know if you were writing the opinion that you're asking us to write on retaliation ok so you think it's just enough regardless of the reasoning even if they did it's so if they didn't have any other this is all they had was ms clay and they kept sending her that's enough yes well that's enough for a fact question but how does that differ still having trouble how you're distinguishing between the discrimination claim and the retaliation claim given that they sound very much the same they are very similar i would argue that the retaliation get recovering the boat i can't recover duplicative damages and with it there's plenty of times where you succeed on multiple causes of action but there's only one day in the age of the damages we lost i'm just saying you can't recover damon you can win