in the plan this morning is we're going to hear the first case on the calendar which is martinez b davis polk and then take a very brief in germany and come out and finish the the calendar the first case is going to be heard by a case with respect to her discrimination claims and the judge's rationale was that she did not compare herself to employees who were similarly situated we believe that was never on use ruling and the reason for that is that there is a case here in the second circuit versus delta airlines which states that the prime official case can be proven in a number of different ways the essential factor is that the pla deuce enough facts which created a inference of discrimination in this particular case the district court ruled that since miss martinez duties and title were unique in the department she could not establish that she was similarly situated to the comparatives that she cited in her amended complaint our position is that she created an inference son stated that there are more than one ways to demonstrate discrimination in what what is the evidence that race was a motivating here ok we're relying on two types of evidence the first evidence goes to the compensation that was paid to the employees are evidence number one first count so yes you know what similarly situated but we're back to the question of whether they were actually comparatives while never compare is in so far as the work in the same department our contention is that their level of responsibility is roughly equivalent and worse citing knowledge than her deposition i think that there were differences in terms of their responsibilities and backgrounds right that's true cent annual salary increases those salary increases are theoretically based on their performance evaluations we submitted evidence where they were also the highest paid and non managerial managerial employees where they were i guess that would vary depending on each particular managerial employee but the salient issue here is that yes  extra income but that was jus to having to work additional hours and overtime i don't think that should be a factor in saying whether there was discrimination or not the point i want to make here is that the statistics show that for eight motivating factor besides the compensation information on the issue of the compensation or promotional issues and anything that locates a motivating factor what other evidence is there in the record to show that as you say her position was unique and your client i think admitted in a deposition that for six of the seven managerial positions she didn't have the qualifications couldn't perform the duties of those positions how do you establish that it was race that was the motivating factor for not upgrading the job she was doing to a managerial position as opposed to a business decision that this job is not properly designated a managerial position well as far as managerial positions go there was no clear distinct line between who is many and whose non managerial you look you'll find in the record that for example you might be hired in  list because you're hispanic or you're never going to be a manager because you're spanish there's no such evidence in this case is there well i don't think there need to be direct evidence of discrimination and you're not going to find it in this type of context work she had seen her status she was a columbia law school i mean not law schools columbia graduates yet she was the only one that was not upgraded i think you have to present that fact for jury to consider along with all the facts other facts also include that her and she took or additional responsibilities in in cases were other employees were giving additional responsibilities they were upgraded so i think the court has to look at the totality of the circumstances rather than just isolated issues and here is a lady as i stated she was the only i think there was one other ivy league graduate in the department she was interacting with partners in the firm she was create she was creating the style in terms of their of brochures in terms of their marketing material yet they insist that she was doing administrate of work now some of the work she was doing was taken from a manager one of them was the content management in as far as the website goes that particular test was done by i think a name  and in this type of context in a situation where you have one hispanic employee with credentials similar to her colleagues but yet she she's the only one who did not receive she was the highest paid nonexempt employee in the business development department to two other pushback employees in the department who were also not exempt wh the third and fourth highest paid employee in the business to go to court plaintiffs earned over one hundred thousand dollars a year plus at least another twenty thousand dollars than three percent ok miss martine is inserted years when you she got twenty five percent increase another you she got eleven percent increase another year six from now the year five and not the year for ok do th one hundred thousand dollars increase hundred thousand dollars salary if her salary was capped at three percent a year she never would have gotten two hundred thousand dollars away in any event ok fourteen years is not admits that she does not possess any documents that support her discrimination or retaliation claim she she admits that it was written and she says she admits that she never heard any davis polk employee make any remark that she interpreted as anti have spanish and even her own statistical expert witness said that there is no statistical si statistical significant evidence of discrimination she simply hasn't raised any inference of wrongdoing on the firm's part sufficient to send the case to a jury and that's why the district court below in the main granted summary judgment for davis spoke your honor i think you reject the right whether or not this is not the traditional promotion cl ok she's alleging that her position should have been upgraded from the nonexempt to the exemplar to davis polk as a matter of business judgment and it's it in its discretion didn't compensated for that but as this court has repeatedly stated in other cases it's not the job of the courts to act as super personnel departments and second guess business decisions unless th evidence of some sort of discrimination and there's nothing here that suggests discrimination when i asked her at her deposition what what what makes you believe that you were discriminated against in terms of promotion the plaintiff said was going to quote she watched others come in and get promoted who were white that w lock stock and barrel of her answer and that type of speculation on her part is not the stuff of somebody's judgment or of pretext with regard ok quickly  with salary again she was the highest paid not exempt employee and apartment she was she was paid more in certain years two managers it is true that in many of the employees by the way got three percent one of the white knight exempt employees got two percent one of those years it was in the case of capping there was a there were budgets for the entire department and people non exams that say four percent because you know there was there was one white employee who was around fifty thousand dollars a year some were earning and seventy she was up at one hundred so far three percent is a lot more than their three percent or even their four percent thank you very much uses he's making over two hundred thousand that's base and you will see all of this barracks they're all making under one hundred thousand dollars that just doesn't happen by accident we would like to believe there's no discrimination but i think the court can take additional notice that there are plenty of statistics that show hispanics and some other minorities generally make eighty percent of what comparable whites do it happens in subtle ways and i think a case like this with this complexity of facts is better resolved in front of a jury thank you thank you both for your argument