please the court my name is cheryl agree and along with my co counsel brian sutherland we represent the plaintiff in this matter mr jackie lewis we're here today because the court has asked us about a specific issue in the case and that is we contend your honor that the nearly identical standard spouse by this court in nics versus w c y l in one thousand nine hundred four is wholly inconsistent with the supreme court cases on this issue and should be rejected  mcdonnell douglas requires it it's a burden shifting framework and it's only one method by which the plaintiffs may prove cases of discrimination and under mcdonnell douglas if the plaintiff is using compared in order to make a prima fascia case of discrimination she must show that she's a member of protected class she was subject to an adverse employment action she was qualified and she was treated it the employer treated her her employer treated similarly situated employees differently than it did her under similar circumstances going to ask you a quick question just about sort of the ordering if you concede that those are the four steps under the prime official analysis how is it in your briefing that you say let's take all of the comparison analysis and sort of demote it to step three it sounds to me like that is the four factor in the prime official case under mcdonnell douglas emerged on like so where would we get the authority to say forget about it step one let's talk about it step three we're not contending that we should forget about it at step one what what we are saying and what the plaintiff is saying here and what the amicus brief also said is that at case the standard the burden is not onerous and the supreme court has said that repeatedly the burden is not what i'm sorry not onerous so what is that just what does that mean to say we're in summary judgment not on a motion to dismiss so the discovery is complete you've had access to their materials at this point will you wouldn't that on the front end when you fashion  honor at that what we need to show is that there are compared to those outside the protected class that we're treated differently than our client under similar circumstances so under mcdonnell douglas which was a case that involves some aspects of discipline it was a retired case but the plaintiff in that case had been terminated and then applied for retire and the contention of the employer was that they were denied the position because they had engaged in some union activity what the court the supreme court mcdonnell douglas said was he just needs to show at the pretext stage that there is some evidence of people who are treated differently for conduct  comparably serious and the supreme court has said as recently as two thousand and fifteen in young versus u p s that precise equivalence is not required and you know i accept that i guess that's not really i'm going really back to the question that judge newsome asked you a moment ago how much does the plaintiff have to put on the table on the front end with regard to the comparative at the prime of facial stage if they're relying on can if the plaintiff is relying on compared or evidence as the primary evidence to prove their case then they do need to say here is a white man in this case my client is an african american female here were two white men who were treated differently than my client under similar circumstances so that's your tests are circumstances similar circumstances what does that mean sort of flesh that out for us a little bit i  will so what the supreme court said in mcdonnell douglas is that the compared must be comparable to life ok the misconduct must be comparable and i understand there's not going to be a bright line rule these cases are fact very fact specific which is why we end up here quite frequently your honor and there's really not much we can do the about that the lower courts weigh evidence all the time although frankly at the summary judgment stage judges aren't supposed to be weighing the evidence if there's  two thousand and ten s or when that the two compared to others receive were under a fitness policy which was enacted after your client was terminated and you're comparing her terminations which was we're not going to work  with something that happened to two that took two other two white two and one half years later under a different policy at your argument is that's that's similar to situated it is your honor because that what happened here was that our client was pace placed on administrative leave when her doctor said she could be not be shocked if i was this case suppose this case had been filed and know your honor we would not have done that but in this case we did have compared we had compared who were similarly situated to my client in that all of them had physical issues health issues which precluded them from meeting thirteen wasn't that an exercise of the chief's discretionary authorization under chapter six that says that administrative employees can be put on administrative leave for up to one hundred eighty days yes your honor and the testimony in the case was that the chief is entitle to lower the number of days and that's what he did with the fitness policy that at least the union city has contended they enacted in two thousand and thirteen we don't have a copy of that policy so just to make sure i'm understanding when he had a single african american woman in front of him he gave her twenty one days but when no one was in front of him and he was making a generally applicable policy he gave them ninety days yes rather is that enough for a prime aphasia case now there may have been other reasons but would that come up during pretext sure it would come up during pretext because my client was actually entitled to morley under the city's policy than what chief eventually decided to do for people who couldn't meet the qualifications standards for the job which was a shorter amount of time but here's the reality my client was fired after twenty one days if she had been given the ninety days before mr hurd ever got an attorney if she had been given the ninety days that mr mcclure was given and if they had taken the opportunity to talk to her doctor with a measured against the same standard that is to say as i read the briefs and i haven't looked at the record what jumped out at me was there was a powerful disagreement about what policy governed the one hand one party was the standard that governed giving the time to herd in the clore was this new policy which was adopted substantially later than the standard that governor and mrs lewis was a completely different standard on the other hand i hear the plaintiff to say it was the same standard how do i find the answer to that the answer to that question is a little muddled i'll be honest with you your honor and that's because the new policy has not been produced in this case know like you have the testimony of the officer who says this policy was new here is when we adopted it here's what it said and we applied it to these two fel controverted in this record right that is uncontroverted your honor but we also have testimony of the city manager that says the police chief under the policies is permitted to make a more restrictive policy than that which the city has and acted so the policy under which my client was disciplined whatever was placed on administrative leave actually entitles her to one hundred eighty days rather than the new restrictive policy that she photon put in place for people who could not meet the physical qualifications of the job you're not just on the title seven side you're just not trying to recover the days of administrative leave but you're also challenging the termination decision right we are so let me ask you this question and maybe it's a way to try to get at what you think the standard actually means for a couple of the comparative years there's at least an outside chance that with time they could become physically fit enough to pass the standard lighter but due to your client's unfortunate medical situation i'm wondering whether there was any chance that she could have even with the right amount of administrative leave been able to be fit for her job because having undergone what she went through her doctor certainly did not want her being taze as part of her training regimen zat add anything or take away anything from how close she and her comparatives are well your honor i have a couple of answers to your question the first of which is francisco sitting here which is another one of the compares in this case actually also had a heart condition and his doctor initially said he can't be shocked by the taser because of that he was never placed on leave the city talked to his doctor his doctor said you know what i'm convinced that if you sho him in the leg instead of the back it's not as much of a concern that could have happened here if they had talked to my client's doctor where in the record does your client doctor provide an affidavit if they just given her more time or they'd shocked her in the leg instead of the trunk of the body that everything would been fun and she would have cleared i couldn't find it anywhere that's not in the record because it wasn't there is no evidence well whether it was i ask or not there's no evidence that would more time she could have overcome the difficulty that led to her terminations there's no evidence otherwise either they haven't use any evidence that she wouldn't have been able to if they had discussed the accommodation i thought the burden was on you i'm wrong about that we have the burden of and you didn't carea in regard to the need for more time i never suggested the doctors said don't do it and never suggested but why do while and maybe you can do it honor my client specifically asked in her request for accommodation can i please come back to work while you talk to my doctor to try and find out a way that i can meet your standard but then another did not suggest and as i understand it your doctor didn't just when the decision was made to terminate or they did not know what the doctor told them three hours later did that is correct they had you taken the time to talk and as to the tell using they still don't know that because she's never s in the conversation with the doc you you're correct on that your honor but in the conversation with the doctor they never even asked the question the notes are in the record of the conversation with the doctor what they asked her doctor was or what they said to her doctor was how did you allow her to work here for the last thirteen months and put us in danger because step away from the facts of this case for a second and see what you think about the fern co case and whether that helps us get to rule because that case  this makes it clear that the privation burden is actions taken by the employer from which one can infer if such actions remain unexplained that it is more likely than not that such actions were based on a discriminatory criterion illegal under the act whatever mission does that give us about how similar compared to his need to be for co really just extrapolate on mcdonnell douglas and the the conduct just needs to be of comparable seriousness the difficulty with this case in resolving this issue is that it's not technically a misconduct case all three of the compared were placed on leave because they couldn't meet the fit for duty standards of the job at the time they were placed on leave and was there any chance that mr hurd was going to become fit for duty in the four hundred forty nine days that he was on administrative leave there's absolutely no evidence of that the ultimate because he was ultimately terminated well didn't wasn't in fact he said he had a disability and he wanted to be he wanted to be able to do the job even with the disability he was seeking accommodation not to be able to meet the fit for duty standards so he was unfit for duty and had no chance of becoming fit for duty but he got four hundred forty nine days is that fair to say that is that it's fair to say that is the evidence in the record your honor i want to return to judge grants question because i think i agree with her that  may begin to point us the way to a standard now it says that you've got to be able to infer from the prime official evidence intentional discrimination yes we've set a thousand times that discrimination the definition of discrimination is treating like things or people differently so i would think the platonic form of discrimination is true apples to true apples we recognize of course that in the real world there are no double gangers as you say right correct so in an accommodation  concession to the real world we've throttled it back a little bit to say nearly identical so why isn't that the appropriate standard when what you have to do to prevail at even at step one which is judge grant says if the defendant says nothing at step two step one means you win yes and so what you've got to do it step one is to demonstrate a potential winner with respect to discrimination the treatment of the different treatment of like individuals so why not just take one step back from truelike to nearly like nearly identical and call it a day why not well there's a few reasons the first of which is the courts below have applied the nearly identical standard as meaning double gangers as meaning i told them that's their fault we should correct them if that's right then because absolutely nobody thinks that nearly identical imprecisely identical or the same thing that's ridiculous well let me ask you a question and you know how many honest with you and do you know of those one hundred twenty nine cases that are available on west applied that standard how many times the plaintiff has survived summary judgment my guess would be maybe once or twice while you're you're right twice so less than two percent of the time but let me ask you have you looked at all of the seven circuit i think you talked about the coleman standard is one phrase so since two thousand and seven do you know how many times the seventh circuit has applied their standard i did not look at the error it's one hundred twenty one times and of those one hundred twenty one times seventeen times the plaintiff has survived summary judgment so fourteen percent of the time do you think that's because there's less discrimination in standard but let me tell you one thing that i'm going to give you know up to no answer because it sort of bothers me about and i know we're supposed to be focusing on the formulation of the standard but under any stand similar similar in all relevant respects nearly balance sometimes it says agility and apparently they both had the same nature problem one of them recovered from it and passed the test the other one didn't which indicates that if you put some kind of effort in it or maybe you didn't there you could but that's physical fitness to run ballots whatever on the other hand the plaintiff doesn't really have a physical fitness problem so much as she has she can't be at or near the discharge of certain preferred non lethal weapons that may in the able to law enforcement officer if she's on the sane to avoid using lethal weapons but if the officer can't use spray or can't use the taser and it's a matter of escalating violence that fellow officer may have to use a firearm now to me that is not in any way similar to the situation of an officer who can't chase as well or can't keep his balance as well or can't stand on one foot that sort of thing i don't understand your argument that that's similar well first of all there's no evidence in the record that my client can do you her job because her doctor said she could be exposed to o c spray and to be certified to carry  taser she did not have to be no no no that sort of is a total red herring just because the corporation says you don't have to be exposed to the shop doesn't mean that a law enforcement agency can't say with every valid reasonable justification for it you've got to be exposed to it one time so you know what we're talking about and so when you get in that kind of  situation and if you're accidentally exposed to it you won't be in a state of being startled never been in it before and if you get on the witness stand and some lawyers cross examine in a civil case well you've never been exposed to it yes we go through it and trying that's an entirely different thing then whether you can maintain your balance or agility i don't understand and you're not the only person who seems to just assume that that is similar but not similar enough i don't understand what's similar at all your daughter we contend and you know this that it is similar my client could could and would have been put on light duty as long as she could be exposed to o c spray which you're going since there were a letter from dr harris at the front and saying in the words of substance that she had several chronic conditions including a heart condition and that quote this was from the physician i'm talking about quote she would not recommend that a taser gun or o c spray be used on or near secondary to her current conditions yes your honor what does that mean what would the police department probably take that to mean well in this case what they took it to mean is that she couldn't even be in the building with o c spray dr didn't say that and my client had not been required to carry o c spray in her entire career with union city nor up until two thousand and ten when they instituted taser policy had she been required to carry a taser let me ask a question of the slightly higher order of abstraction chronic heart condition that makes it impossible for her to perform the duties of a firefighter she can't carry someone weighing two hundred pounds up or down a ladder comparative or suffers from an up dominant hernia and can't do that either but only for a fixed period of six months are they proper comparatives or not regardless of whether we use are nearly identical or similar in all material respects hold aside the standard in your view is that a proper comparative to enable a jury to in that the disparate treatment was on account of intentional discrimination because of race or gender i think it would depend your honor in that and what i mean by that is if you have a heart condition which if you train into physical therapy then you could weeks cept for the purposes of my question heart condition comes on firefighter can no longer carry someone up or down a flight of stairs in a problem or clued  cardiology says don't take the risk compare that with another firefighter who has a hernia and can't do it either but he's limited to only six months and if the recovery is proper he'll be able to do that are those two folks similarly situated as comparatives so that you could draw an inference of intentional discrimination from that if there's no accommodation that can be given to the firefighter who will never be able to carry someone up and down stairs then they're not similarly situated ok now you're on the front end of the prime with patients showing would you not be obliged to point out that to the extent you're claiming there's a comparison between the two that the first person couldn't perform that task at all whereas the second person could after six months but that be something that you would be required to put on the table in order to meet your burden of making a prime of patient showing on summary judgment where you didn't have direct evidence of the discrimination and you had to operate on a circumstantial theory for summary judgment should be affirmed because miss lewis has not created a genuine issue of material fact necessitating a trial in this case on any of her claims the race sex or disability discrimination ms lewis is discrimination claims are based on two discrete employment actions the city's failure to provide her more than twenty one days of administrative leave and the subsequent terminations of her employment evidence in the record that would permit a reasonable fact finder to determine that there was intentional discrimination with respect to the employment action at issue this is a submission element of the plaintiff's claim or does it shift an evident burden to your defendant to the defendant doesn't that mean that the defendant has to give a legitimate neutral reason for the employer action that they took yes the premise thinks the case is only intended to create a presumption of discrimination and  per presumption so if the plaintiff can meet that standard yes the burden of production not the burden of persuasion shifts to the defendant to provide a legitimate nondiscriminatory reason for the action and has your client already done that yes would permit a jury to find intentional discrimination with respect to the employment act your actions at issue here in fact if you actually look at the evidence in the record miss lewis makes an assertion that her comparatives were placed on leave under not so that when the complaint was filed these two comparatives didn't exist that well they existed but now i mean the evidence regarding that to compare there were there found that two and a half years after the determination of plaintiffs and plummet these two detectives had been placed on administrative leave because they couldn't pass a physical test that is correct your honor so the comparatives arose during the litigation that's correct your honor and in fact we actually asked for miss lewis to identify who her compared as were in paragraph seventeen of our  provided during discovery the new policy was never provided she never identified mccloy are nor heard in or nor ever gave any indication that these were her compared or such that the fitness policy would have even been  relevant when we were conducting discovery in this case can you go back and tell me what you were going to say earlier about those two paragraphs forty eight was it forty six and forty seven yes your honor in paragraph forty six a plain a statement of material facts she talks about officer mclemore and at the time of his deposition he'd been on leave for two days and that was in april of two thousand and fourteen as was almost four years after miss lewis's germination on page thirty three and thirty four of his deposition he was actually shown the leave of absence policy that mr lewis is relying on and he was asked whether that was the policy that applied to him and he said quote it's not he testified that his leave was under the police department and so not the city handbook which is where that leave about this policy that she relies on is and according to the fop he had ninety days to retake the fitness test and pass or he would be you're talking about was promulgated as an exercise of discretion under the city employee handbook chapter six section one that the department director gets as a result of that chapter is that's not right seems to be what mccord and wraps and thought because both of them testified that they believed that it was an exercise of the administrative leave policy actually miss mccord testified when she was in her deposition what leave policy applied to her and she was asked about a leave of absence policy issues that i assume so she didn't know we objected to and wraps in the city director he is the director your honor the city manager and i'm sorry he asked if he was the former city manager and he testified that they that it was an exercise of chapter six section one that discretionary authority didn't have a time not that i recall your honor ok well mr glanton can i ask you to switch thoughts for a second is there a way for you to explain what you think the differences between similarly situated in nearly identical or is it really or is it really just that's not enough all this is close enough i mean isn't that where we are whether you call it similarly situated aware that you call it nearly identical it's really hard on either side of the case to really put into words what that means right i think the nearly identical makes it a little bit easier for practitioners and the poor in x makes it easier for defendants to win similarly situated makes it easier for plaintiffs to win because the standard seem to mean something on one side or the other but it's hard to figure out what they really do mean right or you don't i think the standard is similarly situated  it is your honor what i can say is that if you really it doesn't matter what standard we come up with as long as we apply it in a uniform way well the stand are less certain because it has to provide guidance to the litigants and i know but evidence is relevant in discovery and to the ultimate question of whether or not the employment decision was based on intentional discrimination i don't disagree with you but if you or i or anybody else can really explain in words what the difference between one standard and the other is it really just comes down to how you apply any standard in a given way and how you do that from case to case week to week month to month year to year right what what was the difference between them in words let me say this your honor i looked at the sixteen cases that mr lewis decided that this court has decided over the last couple years and it seems that the court has come up with a way to provide some guidance to lead against and to the trial court about what that means what does it mean ok and that a minute i'm going to quote from the panel decision and diagnosis versus target media partners because this is this is one of those cases that i think actually provides a pretty decent guidance for the for the litigants to make a comparison of the plaintiff's treatment of that of employees outside the protected class the plaintiff must show that he and the employees are similarly situated in all relevant respects to determine whether employees are similarly situated we evaluate whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways when making that determination we were we were prop and we require that the quantity and quality of the comparative misconduct be nearly identical to prevent courts from second guessing employers a reasonable decision and confusing apples with oranges is that different than what the first second third fourth fifth and the fifth eighth ninth and tenth circuit of said which you have to be similarly situated in all relevant respects every all relevant material respects but not demanding quote unquote exact correlation is there a difference between those who are the same i don't know that there's that much of a difference standard in this court also doesn't require them to be exact either so i think it's just a matter of semantics whether or not you call it similar comparable seriousness nearly identical as applied with the guidance that we've received from this court the parties can see in discovery what is relevant to the issue of determining whether or not there is intentional discrimination when you're talking about an employer's decisions that is based on an employee's conduct if it's just a matter of semantics and how do you explain the difference in the rate of survival of summary judgment for a plaintiff in the seventh circuit versus this circuit so again seventh circuit is fourteen percent and here it's one point six percent you're on i don't i don't know how to explain the difference the seventh circuit standard is a lot less onerous in that it's not a demanding standard to determine what similarly situated means are nearly identical is a much tougher t any differentiating or mitigating circumstances that might distinguish the conduct that's not the way our cohort i have it here in front of me the similarly situated analysis calls for a court flexible commonsense examination of all relevant factors and doesn't it also say the fundamental issue remains whether such distinctions are so significant that they render the comparison effectively useless which seems different from nearly identical to the government the komen decision is interesting because on the one hand it does have more of what seems to me that would be a more onerous standard and then they kind of come back and talk about a lighter standard so i'm not quite sure what the standard is there is that here's the difficulty i have with the seventh circuit standard if the standard is simply close enough so that the comparison is not useless or meaningless but how far departed are we from discrimination which we've said is treating like things differently it seems to me you're so far down the line at that point if all you need is a not useless not meaningless comparison we're not really even in the apples to apples university i agree your honor i'm trying to figure out what we do with all these supreme court cases that say that  case is not in on our us or demanding burden it's supposed to be easy for the title seven plaintiffs and not difficult for the title seven planet can you cite a case that says otherwise i mean all of the supreme court cases that i've read evaluating the standard for establishing a prophecy case they all say that is supposed to help the title seven plaintiffs and not hurt the title seven plaintiffs make it easier to get past  i reading these cases wrong well your honor the way that i read the language when they talk about it should not be onerous the way i read that it means it's not supposed to decide the ultimate question of fact which is whether or not there is illegal just discrimination in retreatment is not onerous close quote and all of the cases say it's not a demanding or burdensome or inflexible approach so when we say that similarly situated means nearly identical it seems to me to run contrary to supreme court precedent in my reading the supreme court cases wrong your honor i read them differently what i will say is that when the supreme court spoke most recently and young the supreme court actually said even though they said you know that case can be distinguished from other title seven cases because that really dealt with pregnancy accommodation but nevertheless it talked about this issue this situation can't be meaningfully meaningfully distinguished from the plaintiffs so there have to be enough similarities right but  isn't that different from saying nearly identical is there a single supreme court case starting with mcdonald and going through your entire period of time and they're all part of what the supreme court has ever used the phrase nearly identical whether you're talking about the prime of face you showing or at the end of the game when you get to the pretext age have they ever spoken out nearly identical no your honor know what the jury be question about whether or not these cities actions with respect to miss lewis were taken because of a race or her sex son summary judgment why are we tied up in knots over figuring out similar versus seventh circuit versus near identical when we need to have the entire record and can look and see if there's evidence of intentional sufficient evidence to show intentional discrimination because mcdonnell douglas was designed as a tool to help the court does m that it should that it should be applied on summary judgment yes it's a summary judgment tool and it helps the court evaluate the evidence in a sensible orderly fashion and is it bears on the critical question of discrimination  we've said before an unpublished case at least that on summary judgment you may not need to evaluate the compared to ours instead you might go and see whether the whether the evidence satisfies the ordinary summary judgment standard i think that's what action suggests that once the once the defendant has met its burden the the discussion of the comparative falls away and the court looks at the ultimate question why wouldn't we do that here because the supreme court has has continuously applied the mcdonnell douglas standard and framework when evaluating motions for summary judgment has it ever done so in this precise context i'm sorry  and a jury renders a verdict one way or the other and the case goes up on appeal by the losing party at that point the prime aphasia case of mcdonnell douglas drops out and then you just have to find out whether or not there's enough evidence to allow to allow the jury to reach the decision that it reached but at the summary judgment stage if the district court granted summary judgment on the ground that the plaintiffs didn't meet her prime aphasia case that has to be addressed on appeal right in other words if the reason for the district court granting summary judgment is that a plaintiff didn't satisfy the mcdonnell douglas byrd on crime aphasia case that has to be addressed on appeal right yes because there would be the court would have found that there is no evidence that would permit a fact finder to find intentional discrimination rather that but the mcdonnell douglas is one way of doing it you also have the other so called mosaic of evidence which you put everything together and although you may not technically satisfy the prime facie case the makes until tally of circumstances allow a reasonable fact find your to conclude that there's been discrimination you've got both of those avenues available right yes your honor can i get you to help me with the standard again my hypothetical is that there are two employees they have the same responsibilities at a job one of them comes in an hour late routinely that happens to be african american woman the other one leaves an hour early every day or routinely that happens to be a caucasian man or those nearly identical so if one was tardy routinely and one left early routinely routinely an hour for those nearly identical i don't know i guess it would depend on if there is a particular reason that the employee has to be at work at a certain start time i don't know i don't know that i don't know that are they similarly situated well there there are situations are different but they're both not at work for a period of time surely surely absent some reason to be at work at a particular time or to stay to a particular time judge martin's hypothetical surely there are nearly identical right well seems like maybe you don't agree i don't know i don't know that there is any i'm trying to think of whether or and the other one walks out it for every day one gets canned and they all that this is not whether i use nearly identical or similar in all relevant ways that's time or twelve times they're both the same one comes in late one leaves early for all relevant purposes are they not comparatives good comparative i can't think of a reason that would distinguish them ok let me change it for you so there's a mating that happens at nine o'clock the woman routinely misses the meeting but there's there's no similar meeting if you know four o'clock when when the man leaves early still similarly situated i think there would be a little bit i think they'd be different and certainly they're not nearly an identical under your view of the standard right they're not nearly identical the seventh circuit helps us out in coleman versus donahue if we had their standard they say there is no magic formula the similarly situated inquiry should not devolve into a identify what those relevant factors are to the employer's decision and then you can do the comparison once you figure out what those relevant factors are that go into the employer's treatment of those individuals what if what if we looked at it this way what if we just say that all that is required is an inference that absent discrimination absent the race or sex differences between plaintiff and that compared to the differences in treatment would be arbitrary or irrational if you don't mind your honor can you say that again we were looking for is an entrance of discrimination from circumstantial evidence right correct so the inferences that absent the differences that could be viewed is impermissible discrimination sex race the differences in treatment between the plaintiff and compared to others would be irrational or arbitrary that that what we're looking for with the standard no matter what we get all it yes ok you got another go ahead two police officers one of them uses excessive what we can all agree is excessive force with a taser the other one uses excessive force with a nightstick you know one once a woman once a man the woman gets discharged  though they use different context a little bit different right i probably would agree that they're probably proper compared and with some distinguishing factor that my i mean it's not just that ok so the person that uses  is nearly identical that's what you call a vote of confidence i was trying to distinguish between them just i don't know that the officer at the time that they use person still but no publice of the other the one with the nice suit that goes unnoticed are they still identical for purposes of a prime a facial case i would say i can't think of anything that would distinguish them at that stage now the employer may come back with a reason about why they treated one differently than the other and that would be a question of pretax but at the prime of a stage i can't think of anything that would distinguish that conduct nearly identical i would think in your view i would think so anything else but you were asked about irrational arbitrary and whether you thought that was a fair explanation if if the explanation is irrational arbitrary then an inference of discrimination is allowed you remember that yes yes ok do you think that's consistent with what the supreme court said in bird when it said the prime a fish a case raises an inference of discrimination only because we presume use x if otherwise unexplained and more likely than not based on consideration of impermissible factors and otherwise in other words is if otherwise unexplained in your i think you have to look at it as what a reasonable employer make this distinction would a reasonable employer treat these people differently whether it's different conduct whether it's different policy whether it's  different standard and you want judges to make this decision judges do make these decisions well i know but i mean you're throwing a lot of factual distinctions in there i mean why didn't that just go to a jury because the court your honor has to determine whether or not there's enough evidence to go to a jury and it's the plaintiff the burden to come forward forth with the per show by preponderance of the evidence that there's intentional discrimination and absent that there's not a question for the jury so the court does have to look at the evidence to determine whether or not a jury can find intentional discrimination and that's what the court is doing does it have to show the prime aphasia case that there's a preponderance of the evidence in support of intentional discrimination or that from the facts it can be inferred that ends and that intentional discrimination took place there has to be those are two different standards correct i agree with that and there has to be sufficient evidence that would permit a jury to find intentional discrimination i don't know that that's a preponderance i know at trial of the plaintiff burden is to show with a so it summary judgment what we're really trying to figure out from circumstantial evidence is whether there's a reasonable  e that impermissible discrimination explains the difference and in treatment right it's not a question about once you have a case where that that can give rise to that kind of reasonable inference in your instructing a jury you're instructing them about a preponderance of the evidence standard where you have they have to determine that it's more likely than not that discrimination was at work right i mean those are just two different things right even decided these cases and so a lot of what we're talking about here is comparing people based on facts and deciding whether they're the same or different which is something that really and what's one of the things the seventh circuit judgment yet i don't think we would need to modify mcdonnell douglas and in order to do that i think we would need to adhere to the heart of mcdonnell douglas which is if a reasonable fact finder could conclude that there is an inference of discrimination in the jury should be deciding this if a reasonable fact finder could conclude that my client is similar to walk or hurt than that reasonable fact finder the jury should be citing that issue not the court it's not a summary judgment issue and and i understand that these are difficult cases and difficult issues because we're dealing with discriminatory intent but if a reasonable juror could conclude for example on judge martin's hypothetical where someone's an hour early and someone's an hour late or leaves an hour early there are lower courts in the circuit that would say they're not similarly situated under the nearly identical standards because they actually do count while this person was late five times and this person was late seven sime so they're not nearly identical summary judgment is granted so is the solution to chuck the standard the courts have been applying for a long time honored twenty nine times or whatever and to start with something afresh or standard wrong well we would argue the standard is wrong under supreme court precedent but even if this court finds that the nearly identical standard comport with supreme court precedent that says it only needs to be of comparable seriousness and does not need to be precisely equivalent we would hope that this court would prefer provide instruction to the lower courts so that they would well that's why we're here aren't we the decide that nearly identical is just too tough what should the standard could we say that the proposed compared or has to have an object there has to be an objectively identifiable basis for compare ability something similar to what the s has that's what i argued in my previous because i believe that it's true your honor i think that that is more consistent with supreme court standard that as long as they have enough in common for them to be considered equivalent by a reasonable same or similar then it should be surviving summary judgment and going to the jury to decide is there a difference in your view between the standard of nearly identical on the one and and similar in all relevant respects on the other do those standards really differ and if they do tell me how they do differ your honor from my perspective and from our part the plaintiff's perspective because nearly identical sounds a lot like precise equivalence it really does at this point that's not the question the question is whether  situated in all relevant all relevant way is there any difference between me saying the standard is similar in all relevant way or saying the standard is the comparatives must be nearly identical yes your honor it is different tell me what the linguistic difference it's sort of the tonality is difference when i use the word identical it's sort of moves me into another range but when i modify it with nearly i'm not sure i know it's it's sort of close but it doesn't have to be identical is there a difference between sort of close but not identical and similar since that the way it's applied and we need to give direction and say we don't mean identical we don't mean the same let me ask you the second question then if we would have a limit eight the standard of nearly identical and impose the standard of somebody judgement goes to defend if you will juror could not conclude on a no no if they're not similar and how relevant ways if there's a relevant way in which they are different would you say summary judgment for the defend and found that when we know that but you're back in you're back in the district court of judge wilson wants to take us there and they are so similar and all but one relevant respect does the defendant get summary judgment similar in all but one relevant respect appears to be nearly identical and it doesn't comport with the supreme court to relevant respects but that's that's the problem with the scene we don't have the standard we just have the district court to decide whether he thinks a jury could go one way or the other we just throw out the standards well there is a standard the supreme court standard is was the conduct of comparable seriousness if you're talking about misconduct we're not we're talking about this case right now in this case a non misconduct case so i'm asking you if you're the one pushing the standard as i understand relevant ways does it have to be different before the south before there  a couple of steps one of the issues that was pretty prominently and boldly briefed was that the comparison analysis should be just stripped out of step one and demoed it into the pretext standard but i haven't heard you arguing that today are you or you sort of largely walking away from that we've been talking about step one now for an hour your honor i think to really answer that question those this court's opinion in vessels is really the opinion to look at and what i'm to i just want to know your you know still believe that the compared to any comparative analysis should be taken out of step one and put into step three we believe that the comparative analysis of the differences the distinctions as raised by the defendant should be analyzed at the precise pretexting but just the plaintiffs have a burden even if only to shift it to get to the presumption the potential winner at step one to show some comparison some comparison yes ok so it's not the comparison has been totally demoted into step three it's that you have some sort of we bere standard at step one and a stronger beer standard at step three yes got it ok so let me ask you something getting back to the question that the chief judge marcus were asking you similar in all relevant respects are ways wouldn't it be the case that if that were the standard then the district judge would be looking to determine whether a reasonable jury could decide whether they were similar in all relevant ways and only if a reasonable jury could not decide that they were relevant in all that they were similar