little bit about about mr williams because of how this whole matter is evolved i think that the way the breeze for the city has been to the fore it raises issues specific legal issues and he gets indefinitely suspended but then that is reversed and he gets back pay i think except for the fifteen day suspension that was what ended up being the official penalty so are those the only damages here or the fifteen days of pay that this at least on your indefinite suspension plane i know there's been talk about failure to promote on the indefinite suspension challenge or is it just down to those fifteen days of pay given the back pay award no your honor because during that time period he was he had no access to health benefits and during that same time period as well he lost  november or december of fourteen so fourteen months i think pretty close to that there but once once a police chief decides that they have issues with a police officer because of the nature of police work you can find anything wrong with what they do because it's subjective and so i think what what the evidence that we presented a challenge to change both about discrimination against him and also about discrimination against other african american officers and once that happened what  he's indicated in his affidavit and what we indicated in our pleadings is that nothing he could do at that point west correct this is not something that  something that is a number of discrete acts this is something that's own going because what he indicated was he no longer had any support from his superiors and that he was accosted by his superiors about engaging in protected activity now the city mentions and their brief that mr williams did not put them on notice of his contention that following a lawsuit challenging discrimination was a protected activity we think that goes without saying that once twelve of our many of the complaint where we described in that amended complaint mr williams being accosted by the his superiors and referencing gaging about why he would follow a law suit but that's that's what is referred to in paragraph twelve so there was no surprise and i might also say there should be no heightened pleading requirement and civil rights cases that we should look at the purpose that the united states congress had when it adopted title seven and if we look at this work which case that we've cited i think it makes it very clear that we're not supposed to lay out everything and a pleading as the district court indicated in the city indicate in reference to a discrimination claim and i would say also that would apply to retaliation  klein and so there was ample opportunity for them to know and understand and they even indicated and what they put forth to the court was that mr williams claim on the other case went through october of two thousand and thirteen so there than acknowledgement that the lawsuit relating to the first discrimination complaint extended through october of two thousand and thirteen but somehow there is not an understanding that that is protected activity just on the on your statement that the pleading should be generously interpreted are you pressing that there is reversible error as to the district court's resolution of your hostile work environment claim can you point to a paragraph in the pleading that reaches severe and pervasive aspects are you not pressing that we are contesting that and i go to again in the and of course we attach the the o c information to to the pleading and so what we didn't and is this when you're a police officer and it's a dangerous job and you don't have the support of the people above you in everything that you do is pick and your evaluation change and things of that nature that that creates a real hostile environment and then when there every opportunity is taken to charge you with things that are really fictitious are that don't really exist don't marry an investigation those investigations took time there not just  discrete act what we'd say it is that once he filed a complaint there was continuous action after the complaint and i think that that that's clear in terms of there being retaliatory harassment and   wrongfully but we can see that he could not have been promoted at that time but the things that were done for the other officers could have been done for him and he didn't have to be eliminated completely from being eligible to get a promotion so that that is go the two officers the other officers who are eligible for promotion but the two that were suspended you're saying they were eligible for promotion but but mr williams was not true but there is a there is a what we're saying he was not then and their suspension and they were not then in their own indefinite suspension they had a one hundred sixty day suspension on his record shortly before and i forget what jones's was but we mentioned that in the in the summary judgment response but what i'm saying is the rules allow for you to say ok we're going to put you in this situation over here and so once you're if you're indefinite suspension is resolved in your favor then we're going to bring you back over and you get the position that you were entitled to that option was available to them they had discretion and they didn't exercise that discretion for him and judge sparks finds that there weren't similarly situated people corpus and will your answer is that they weren't similar because they didn't have indefinite suspensions but the indefinite suspension was later lifted is that your answer ok well if we get into the imperatori you have to look at them pare tours for the purposes of the promotion and compare tours for the purposes of discipline and and if i might let me just discuss that a bit in terms of one of the things that judge parks disregards is that when you you look at the arbitrator holding the arbitrator holding giving mr williams his job back holes as a matter of three we point you point out now two point nine point four which you must read in reading now a two point nine point three and i don't two point nine point four said this got to be the same type of policy validation before you can use  mr williams and the discipline involving the higher situation were not relevant were not related and so that there was previous discipline couldn't be used against him so we think the district court disregarded all that evidence and deciding that there were no comparative because once you reach a conclusion look you now want to one nine point four and the arbitrator decision and those that the city maintains and that is just nearly identical and this nearly identical is one of those things that has been used to really show civil rights lives and it's not the law i mean mcdonnell douglas is being used as a sort of spark sites or leader situation for that proposition which you don't discuss which one the lead decision that's his authority fifth circuit case ok indicate that the chief has a retaliatory disposition and further vincent who had a great latitude being the police association president said with the hired incident we have a clear indication something that justifies pretext or can be used on to tell you the circumstances analysis under aldington heights or or the for being untruthful in lying and you can't tell them what it is they were untruthful about or that they lied about i think that that is huge in the district court this disregards that as if it's nothing but the arbitrator said he'd looked and searched the record and he can find no no allegation of that so we think that when you look at all the evidence there was enough evidence very clearly to move forward on this matter and i thought i really want to direct the court t good morning and please court my name is on assistant city attorney for the city of austin wayne williams was terminated after he received his second serious policy violation only a two year period the record that the city's decisions to internal affairs investigations and ultimately terminate williams employment with the austin police department were based on discriminatory and not based off of the unlawful implying that black practices alleged during my time here williamsville to establish his race discrimination claim has as already been talked about there are similarly situated individuals who are treated favorably that were outside of a protected class under nearly identical individuals who were indefinitely suspended eligible for promotion that she found in his declaration stated that he has never promoted individual who was indefinitely suspended at the time and  fifty a day and the other gentleman got sixty and twenty days were he was allowed to take pay for that so isn't that in the end roughly approximate to the suspension that the adjusted williams discipline know your honor because williams a prior serious policy violation which is defined by the austin police department policy manual as any any policy that results in more than three day suspension or involves dangerous conduct he already had one of those on his record at the time that his discipline was being contemplated for the indefinite suspension in two thousand and eleven he had a ninety day suspension as a result of the high and there were those excuse me the eighty grocery store  that city the police department policies don't allow you to consider that prior history the plain language of that policy states that you are allowed to consider and i ask that you read plainly language of ninety two point nine point four it states that prior policy violations can be considered under three circumstances first if it's same in similar and occurred within thirty six months or if it's a serious policy violation as that's defined like i said more than three days or involving dangerous conduct it can be considered at any time or the third scenario is when there's multiple violation teary multiple violation policies that have been violated over the last several years so there is three different expunged the the employment decisions so when williams was involved in the h e b grocery store incident he violated four department policies those violations are not expunged and therefore that in their brief they yeah i think i'm correct in that page forty is where they discussed this it is in march discussion but it cites a short form of a case of them saying that that's the case the analysis but there is no doubt that the chief acevedo could consider the serious prior prior policy violation and so dictates that you can consider that discipline  purpose of the analysis of whether it's same and similar falls under whether it is thirty six months or williams since he did have a prior serious policy violation of a do for when his right to indefinitely suspend williams and giving him the ninety days williams agreed that he would be under a period of suspension for one year with the probation of one year or excuse me ninety days has been with the probation of one year and so for purposes of that analysis when you're under the probation if you incur another policy violation the same or similar you're ironically indefinitely suspended going back to the same or similar williams has not pointed to any individuals who had a serious policy violation on their record at the time that their discipline was contemplated this is very important expression in light of leaver's as kansas city railway where this court discussed several factors that should be taken into consideration when determining whether an individual is similarly situated and one of those factors was comparable violations histories the city is not arguing that they need to be the exact discipline histories but it could be any officer of the had more than three days suspension on his record at the time that his new discipline was being contemplated furthermore detrimental to william similarly situated analysis he's failed to have provide brace evidence for many of the individuals that he has identified raises just not on the record except for the only workplace that i'm aware of as where the city provided and smushing for summary judgment as to the issue of there's actually no like i said before that there's no evidence or even any in the declaration they don't say what these individuals races there's no evidence of race whatsoever let alone the underlying facts very specific over and over again about exact incidents that he participated in observed at the the declarations they are very conclusory and they don't state what that individual  that's if that's if those affidavits are conclusory what's your best case because there was very little analysis by the district court or in your brief as to why all of those affidavits that i thought were very detailed not conclusory would be disregarded what's your best case that those affidavits can't be looked at i do believe they were disregarded your honor i believe that those those facts that are provided there they don't discuss the race of the officers they don't discuss the serious policy values and any policy violations that are on those officers records at the time and their discipline was contemplated and many of them don't discuss what the individuals were actually charged with there's not enough information to affidavits don't get them to meet this summary judgment threshold is different than saying they're in miscible evidence which is what i took judge bork to say and what what your brief says in addition to your brief saying they're often conclusory and speculative you argue that the statements that are referenced in the declarations are hearsay the statements from the the chief in from oakland tree explain to me why they would be hearsay because it seems to me there's a good argument that either their statements by a party opponent the agent so called jury and i surveyed or are agents of the city of austin i assume and also if you're talking about statements of racial or retaliatory animists is it really for the truth of the matter or just to show that these are the opinions people are expressing in holdings up to two points out your hearsay argument for me yes your honor i would need to go through a little bit more specifically but the declarations in many of the scenarios they  don't even establish that it's the affianced personal knowledge except for in the beginning of the declaration where it says it is based off my personal knowledge but then throughout the declarations there's many times where they say that someone else said someone else  there's no and i can't cite the case off the top of my head but i'd be happy to supplement for you but there are cases on point that say that just a mere statement that everything contained in the declaration is within that afghan's personal knowledge as you didn't cite any in the district court cited one little versus republican right do you remember that case or not first i don't off the top of my head again i would be happy to supplement a brief on this issue however as to to further elaborate on the declarations there's just not enough facts included in these statements in the scenarios to allow the district court to be able to determine that and i would as i would say this court as well to determine whether or not these are situations where the individuals disagree with the discipline imposed versus that the discipline discipline was based on an unlawful employment practice mere disagreement with  discipline imposed does not create title seven action there needs to be additional fact in order for there to be a did a material fact dispute as to the issue a pretext to going back to the retaliation causation  analysis there is a thirteen month gap between william spiling his equal employment opportunity commission charge of discrimination and the first adverse employment action complained of this court that between an eight and nine month gap actually negates cause and we will leave that a thirteen month gap is too remote in time for there actually to be a cause of connection williams also cites in the trial the filing of the e e o c charge and the adverse employment actions complained of that would that would support a claim of retaliation william sides the filing of the lawsuit occurring in october of two thousand twelve as his argument to say that there was an ongoing protected activity the court found that this was that he wasn't going to entertain i think was the language that he used this theory and the reason was  mr good's it was argued that it's a pleading standard because he didn't put it in his pleadings however he also didn't put it in discovery and the city had objected to it on that grounds that during the course of discovery the lawsuit was never identified as a protected activity in the city i'm directly written discovery as to what claim williams was asking and also asked him questions during his deposition and he consistently said it was the march two i don't believe it would your honor because we had written discovery directly on point and i don't believe that you know there is a mini matters that were discussed so in that williams allege was not a part of this lawsuit as there are still ongoing i would like to take a moment before and to address the hostile work environment claim even though it has not been discussed too much i would like to state that williams briefing in both the lower court and this court was very vague to identify with any particular area to you while x actually make up his claim a hostile work environment as far as i can tell would be the internal affairs investigations the policy violations and ultimately the terminations williams employment which are discrete acts the us supreme court has stated gives little to a hostile work environment claim as they are not the type of acts that would generally be so substantial as to contribute to a work environment that's permeated with discriminatory ridicule intimidation and insult accordingly we would argue that he has failed to establish his hostile work environment but william also tries to establish pretax alleging that the letting his innocence he produces the affidavit that discuss that he never violated city policy in the first place and williams appealed that decision to an independent hearing examiner pursuant to chapter one forty three of the texas local government code the independent hearing examiner held a full evidence hearing hearing on the merits of those policy violations williams was allowed to austin police department's policy he did reduce it to only a fifteen day suspension after he overturned the honesty violation but he stated that williams deserved more than fifteen bennett indefinitely suspended by the police department once they dismissed that got one violation with the other three byelection could have been indefinitely suspended provided for those three violations honor with already having a serious policy violation on his record as of two thousand and eleven where he was found to have violated poor policies and then again the three of held sustained policy violations including and neglect of duty which under the disciplinary matrix depends upon the facts of the circumstances in the factors taken in nine or two point nine point three there's an entire list of factors that the chief can take into consideration including whether an officer recognizes it recognize how he violated the policy in order to have confidence and whether or not he can continue doing the job in the future all of these factors could have been taken into consideration and williams could have been in conceal his true culpability in violating u p d policy and see i'm just about out of time so there's no any no further questions i'd like to end by stating that williams briefing in the trial court that he  failed to identify with any particular area he what evidence in the record supports his prima fascia cases of race discrimination retaliation and hostile work environment and we ask that you look hold the trial court's decision to dismiss his law the first sentence and one looks at the very first sentence of nano two point nine point four it talks about same or similar policy violations the same and that's what's allowed prior offenses that are for the same or similar policy ballet shoes and the arbitrator said it wasn't the case and vincent said it was not the case and hope said that was not the case specifically about this case in the situation they not so much the pleading concern you focused on but the city files for summary judgment they say you have no evidence to support any of these claims and the summary judgment rules in your response you have to identify the evidence that you think does support the claim just not a matter of judge barak's or us just being able to look through the entire record and maybe find something that helps you so it did i think this issue comes up with a number of the pieces of evidence you're relying on but for example that opal treaty statement that was made at the and his affidavit that is attached so there was evidence provided in the some judgment about his being accosted that was in the affidavit of mr williams but we did not point to attendant macmiller says that what they did in this case and the information they gave to mr williams was inadequate that they didn't give him enough information to respond to so why is it that you violate from your irregularities in this and that comment along with evidence that was used to create a promise facie case was used to say that the case should be allowed to go to trial so we think that in this case we own procedures so we think those are pieces of evidence that clearly show that there was retaliation here and i think further would be the see nature of the of the charges could have charged off that we were something a lot less and i think if we go back and look at the comments that the chief made in reference to while he undoubtedly suspended williams we look at the high treated the other officers that's misrepresented things and we look at officer will upset we all told seven consecutive lies to internal affair seven in a row and then they said don't that we're going to possibly change your career unless you change your answer so they gave him an opportunity to change his answer and then they change the nature of the charge and so the pretext y discretion that's another reason why even the prior records aren't necessary because if you've got a lying allegation then your prior record is irrelevant you simply go to terminations but in those cases even didn't produce the will information earlier because we didn't get it in discovery about them and we discovered it in another case and another matter right before that and so there was a reason why we didn't produce will but we didn't court  president your time's up thank you very much so i thank you that concludes the court's oral arguments for today and will be in recess till nine o'clock tomorrow morning