to present facts in evidence in support of their kinds one such element that has to be met in order to carry that heavy burden is that they have to be able to show that similarly situated people outside of their protected class were treated differently so if you haven't already noted i went straight to the comparable issue because i think that is probably one of the stronger issues that absent direct evidence of illegal in a case when they bring that motion for summary judgment and they claim things like there are no comparables or they put chose the incorrect comparables they have to do that through the use of clear and convincing evidence and i bring that up because is something that in the case law i often don't really see a lot of reference to in regard to the defendants in a case back to the defendants have a burden of clear and convincing evidence of who is not a can comparable clear and convincing evidence that there is no genuine issue of material fact ok proceed to a jury i thought you said that as to whether other lawyers or similarly situated as defendants burden to disprove  to right absolutely and all they do have to do is articulate and then the burden comes back to me to be able to be persuasive and to establish it and so certainly that clear and convincing evidence standard is not an easy burden to always meet even for a defendant in fact summary judgment is not something that should just slightly be awarded to a defendant in that it does in the plaintiff's case in its entirety and so in that vein i submit to this court that there are multiple issues of material fact that do require this case to go forward to a jury and denial of the defendant motion for summary judgment in this matter first is the big issue with the comparables plaintiffs have identified their comparables his comparables as being mr khan over in mr call pepper and certainly had he not identified these comparable actually would be happily arguing that we just never identified any comparables but that's not their argument here which i find interesting what they have are arguing instead is that we chose the wrong comparables but i believe that it is for the  plaintiffs to determine who their comparables are and it is for the court to make an initial determination as to whether those comparables meet all of the standards under the law to actually act as comparables and here we say that we have met all of those requirements one such requirement being that they are under the same management chain which has not been challenged in this case at all another requirement is that they have relevant similarity we argue here that certainly these three gentleman have relevant similarity in their actions first and foremost that all three were accused of committing multiple instances of time card fraud i that becomes the grey's men of this case if you ask me they are they argue that the other employees there are there are violations occurred on the same day as opposed to your client violations which occurred i think over a thirty day period and i think there were four different days or something i mean they argue well they're not similarly situated because you have one day violation of these two people multiple violations by your court i mean how do you respond to that i respond to that by saying that because delta does not have any policies and intentionally so every case has to be looked at to add a case by case basis and in this instance there is no policy that says the instances have to occur on separate days what they say to us at least in argument no facts to support it but in argument is that you have to if you have multiple instances then you're going to be terminated that's what they say in argument now what i was saying in response to that is i am strongly believing that this is an issue of fact for the jury merely because violations over many several years what's the factual dispute that a trial would have to resolve as to that the factual dispute is in delta's documentation itself because in the disciplines f khan over mr culpepper they only address one instance of time card fraud and they intentionally he did the other instance which is a red flag to me that there were multiple instances these management these the management involved here put it on paper that these individuals were being investigated for time card fraud in involving being removed in requesting to be removed from the r t s system nothing more nothing less and they were discipline for that one was given a last chance agreement the other was actually demoted out of his pseudo supervisory position then they went behind in off the books and dealt with the second violation they didn't inform human resources of that second violation they didn't put it in writing anywhere in but for deposing the witnesses themselves out when the even known about the second violation that's just how well they he it the second instance of time card fraud and they actually dock them pay for that second instance which isn't mentioned in any of the documents that you're going to see before you provided by either the plaintiff appellant or the affably it was just that well hidden that the gentleman committed a second instance and the second instance was separate and distinct from being removed from the r t s system mr connor over yes he asked to be removed because he wasn't feeling well he according to him went to a closet and slept for his entire shift he testified that he intended to stay parm stand and he did he intended to steal the time from the company and he was still in the time from the company but what also came out after i had struggled and got some additional documents is that mr khan over left the building he was gone offsite while punching in after asking to be be removed from the r t s system he left so he says to go get some medicine  some gas and you know and then he came back but when i had to post him he testified that he never left the building that he was there the entire time and that i would not see two swipes in and out of that parking garage but once i got his actual written statement from the day i see on the written statement that he had left the building and management knew that and that's how come they ducked him the entire day because he was asleep in a closet not only because he asked to be removed from that cyst i'm and he left the building and just griffin isn't that in fact what they are accusing mr rodriguez of doing they said mr rodriguez came in he punched in he went in got back in his car and went and parked his car and he could not have been debate don't you find that their situations although ended in the same result were still quite different from mr rodriguez and i challenge whether they number one are comparables or with they or whether their situation rises to a level of discounting what went on with mr karr peppering mr khan over first of all mr liebeler who was the caucasian male he according to mr man's testimony the incident that leads to the investigation happens and then they start the investigation mr lee was incident happened on december sixteenth he had a recommendation for termination five days later his this white male his investigation happened extremely quickly they got a man and got out and it was after a month after what happened to mr rodriguez and it was i am not comfortable with the timing of everything that happened with mr leila and in fact they handled mr leila different all together they actually didn't go back just thirty days they went back sixty to make a case so that they could terminate this white male and i do believe at this point it was too shura that we treat white people the same way when they had never done it before this they had never terminated a white male for this prior to mr rodriguez being terminated the same with mr liebeler i mean with that they were this willing them at all or these were not for these kinds of infractions and it shows through and what happened with mr khan over mr call pepper because they did that very same thing which was their motif don't forget that this was a hostile work environment we have that from testimony of the very same witness that they are relying on who say at the white people look out for the white people the black people look out for the black people in the arabs look out for the arabs this was a racially i don't well know there isn't but animals consider them out comments that shouldn't be considered because they work there every day they see it every day now this witness in particular is mr call pepper who is the one who disappeared for over half of his shift he said that he was in the lunchroom he said that people saw him they believe that and they tell this court you need to believe it but you don't need to believe what he says about the hostile work environment it's a credibility issue either he's a credible witness or he's not either he was in the lunch room and people saw him for four or five hours that he didn't do any work or they didn't either the environment it least based on what he saw on a day to day basis was hostile racially or it wasn't but then on top of that their own documents spell it out when i look at the fact that mr culpepper was told we're going to take care of your discipline don't worry about it the heat is on right now soon as we get the heat off which the heat was mr rodriguez's multiple complaints we're going to take care of it and an entire year later they did just that they reduced this man he stole time he altered the system to help someone else still time and they changed his discipline from good morning they please the court sharon rae gross on behalf of the aptly delta airlines delta is here this morning to ask the court to affirm the district court's granting of doubt to smoking for some reduced disposition dismissing mr rodriguez's case first and foremost because mr rodriguez has not demonstrated that there is a material question of fact about whether or not his employment was terminated under circumstances that give rise to an inference of discrimination because he has not in fact demonstrated that there are comparable employees who were treated more favorably than he was so going straight to the comparables this court has held that to qualify as similarly situated in a disciplinary context means that the plaintiff and the alleged comparatives must have the same supervisor must have dealt with the same circumstances and not have any differentiating or mitigating conduct that the employer considered in kind in the context of disciplining them in this case yes absolutely mr call peppering mr conne over committed time related violations but as ted griffin you pointed out they were all on the same day now is it possible to go back now and look at the records and question whether or not if the h r person who has been pointed out did not realize that mr conne over had left the premises had she known that would it be possible that those violations would have been dealt with differently perhaps but that's merely questioning the employer's judgment in terms of how it dealt with these circumstances and doesn't give r then the fact that he neglected to say in his deposition two and a half years later that he left the premises isn't a basis upon which the company go back and take action against him for a violation that is already deemed to be something that was subject to a final corrective disciplinary action music possible to parse his activities all through the day and saying oh this is one or two or three violations yes it's possible to do that but there's no indication that it wasn't done and because of his race there's also although that although all of these people report to the same general manager there are two different sets of supervisors involved here the supervisors that handled mr rodriguez the situation interviewed him and made an assessment about his credibility with respect to his discrepancies in his time swipes are not the same supervisors that dealt with culpepper and conover and there is no indication that mr lowell or mr bevan were dealt with any way differently than mr rodriguez was the suggestion seems to be made that they were deliberately terminated in order to you know somehow cover up is i believe middle eastern i think he regards himself as asian but neither one of them are african american or the other thing that in that's been offered as a suggestion of pretext in this case is some kind suggestion that there's a racially hostile atmosphere here based on the statistics of that have been derived somehow from defendants production and the documentation or the information that was produced the underlying information from which the statistics have been derived by mr rodriguez counsel actually shows that all of the people who swipes were pulled thirty sixty of them were african american twenty of them were white what's not clear is how it is that that is somehow being that date is somehow being used to suggest that you're more likely to have your swabs pulled if you're african american because the underlying representation of african americans in the population was not requested nor produced more importantly the raw data from which those statistics are polled is in fact in the record and that data shows that of the thirty six african american employees who had their swags pulled five were terminated the rest received either a lesser disciplinary action or no disciplinary action at all of the twenty white employees who swipes were pulled in the same two year period three were terminated everyone else received either a lesser disciplinary action or no disciplinary action  to warrant terminations of the twenty white employees three engaged in a level of time card multiple swipe activity that warranted terminations that pattern is to me five out of thirty six is roughly fourteen percent three out of twenty is fifteen percent so out of the thirty six african americans who had their swipes pulled fourteen percent were terminated out of the twenty nine african americans white employees who had their swipes pulled fifteen percent were honor and i honestly delta's argument in this case is that there has not been a sufficient discovery of or at expert analysis of any sort of statistical evidence to warrant trying to infer pretext based upon the statistics mean council has has alleged in the brief that the statistics demonstrate a racially hostile atmosphere because they suggest a higher probability of either having your time card swipe or getting terminated for it if you are african american but there's nothing about this raw data that demonstrates that it's also been suggested that the lack of an h r policy is somehow indicative of a pretext or a triable question in fact for the jury there is ample testimony in the record by h r individuals and b supervisors the delta takes the totality of the circumstances into consideration when it decides whether or not to terminate people for these kinds of offenses it's absolutely accurate that does not have a policy that says if you do this you are terminated if you that's why they pull time card swipes that's why they've pulled time cards which from multiple people not just mr rodriguez they in fact pulled the time card swipes for mr culpepper and mr conover neither of them had any other instances in the prior thirty days which also distinguishes them from mr rodriguez so how many were how many were terminated and the same day that mr rodriguez was terminated two other people were terminated on the same day m your position is that they are the most directly comparable to mr rodriguez us our position is at the end of most directly comparable it's also our position based on the douglas frightened versus incorporation case that the fact that there are nine african americans being terminated in the same transaction as mr rodriguez is being terminated dispels the notion that you can assume from anyone any data that's provided here about the races of the people being terminated that there's a circumstantial case of race discrimination in the presence of those individual similarly situated employees outside the protected class who were treated the same as the plaintiff dispels the notion of pretext was that the basis that the district court judgment in the district court i believe decided that they were not comparable based on my reading of the the district courts of argument or the district court's oral argument transcript but our position today would be even if the court has feel from reading it was that well if it had just been mr culpepper mr conne over it might have been a jury issue but because it will and they didn't it's not that's correct and i believe that was it just a court i mean district court absolutely indicated that it would be a much closer case hostile work environment racially tainted work environment the testimony is being relied on from that ironically is from mr culpepper and it was made in the context of promotional opportunities at delta and specifically he said that when it came to positions and people being picked for positions he felt like the arab managers picked the arabs the black managers picked the black people in the white managers picked the white people mr culpepper was not a decision maker he's a peer of mr rodriguez had no involvement in any decisions about his terminations it's his own personal opinion and it's not probative enough to create a triable question of fact for a jury in terms of whether or not there is pretext here based on a racially hostile environment problems with delta time clocks has also been offered fact as as evidence of pretext fact adult acknowledges that it has problems with its time clocks means that it's a pretext to a reason that mr rodriguez was terminated in fact this right during his did not offer problems with the time clocks as his explanation for his conduct and there's no indication that anybody else has been excused from their conduct based upon problems with time clocks moreover it ignores the fact that two of mr rodriguez's offenses were based on hand written slips and had nothing to do with time clocks there's also a suggestion made that short comings in delta's investigation indicates that there's evidence a pretext specifically a lot of attention is being drawn to the fact that the delta h r representative ms franz was unaware that mr conover had left the building well again that is simply going back and questioning whether or not an adequate investigation was done and as this court said in in the heart in case you know even where the plaintiffs can establish that the employers actions were premised on some sort of incomplete set an incomplete investigation they do not necessarily succeed in establishing pretext the investigation in this case was as complete as it could have been it is always possible to go back and question the employer's judgment making but there's no evidence that race played a factor in that judge and finally with respect to mr rodriguez's retaliation claim there's no indication that anybody who had anything to do with the term with the recommendation to terminate mr rodriguez his employment had knowledge of the fact that he made an anonymous call to delta's hotline on december seventeenth to allege that he was being discriminated against you admit he made the call on december seventeenth the delta actually disputes that it was made on december seventeenth the only record delta has of a call is january third but even if we take the facts as alleged by mr rodriguez and assume that he made him have a record of such a girl the call number that mr rodriguez was given matches a call that came in in the system on january third so it is a disputed question of fact about whether or not just because he's made a call the evidence shows conclusively to the contrary we don't have to accept his testimony i mean is that if he had made a call with it it would have been recorded by building a car was in fact record yeah if he made a call on the seventeenth would it have been recorded by delta yes or no yes it should have been should have been i mean or the gaps are i mean i mean it appears to me that he did not make a call on the seventy because there should have been a record and the fact that he says he did i don't think necessarily has to be accepted that's all i don't disagree but i would suggest to the court that even if you do except that it doesn't matter because the decision makers didn't know about it because the decision makers didn't know about it because there clear record that the recommendation to terminate his employment was drafted on the fifteenth of december two days before he made the call the decision was made before the call was wrecked by the decision makers they didn't know about  on written pace forms and they should not be included in your analysis and the reason is because november sixth was election day and he had permission on that particular day to be late he had already contacted his p l his direct supervisor and  informed them that he was in line voting we had very long voting lines on that day the november eighth or tense because the date flipflop throughout the litigation the timing was accurate the time that he signed and in the time that he m was three four minutes apart and we have other employees including mr call pepper who make it from the parking garage to inside of the building within that timeframe so those two days in essence are not to be i don't think considered in this analysis that leaves at most two instances at most and we dispute one of the other instances and therefore puts him directly in line with the two instances that mr fox mr conne over in mr call peppa had i just want to address for sixty seconds the douglas v eaton court case that was brought up here today indicating that if individuals who are outside of the protected class also were treated that way then there cannot be e could be persuasive it is not binding but more importantly the court can in should look to this case as guidance the discussion as to the thought processes of the court but when you  the douglas opinion this court didn't have a thought process as to this particular statement they didn't discuss why they felt that way how they reached this conclusion they merely made a blanket statement which ultimately ended up being dicta because it was not dispositive of why the plaintiff's case was actually dismissed in fact they found that the plain of did not produce evidence of any comparables at all not that just people outside of their protected class was treated the same that ended up not being dispositive as of the ruling and in fact they cited to a seventh circuit opinion that has never been cited in its own circuit for standing for that proposition six circuit does not have that case law as binding in any way mr beydoun and mr leila just briefly in the last two minutes mr leila let's go back to mr rodriguez has this event happened on november seventeenth rock you're how because according to the e e o c the guardian case in the event that the promise a she case is a stab laced and the issue of material fact that's involved in that fourth element is the say is if the reasoning is the same they articulate a reason why they say i don't make out a promise a case which is that they terminated based on the number of instances in the thane reason they offered in the pretext argument and under the guardian case when the reasons are the facts the issue of fact that's for a jury to determine that is for a jury to determine and just in my last fifty seconds i would just like to remind this court and i'm know you know case law is a genuine issue if there is an issue with comparables that if the jury could have decided differently it is taken out of the hands of that judge yes as a matter a lot he or she can make that decision but if the jury could have decided differently it is taken out of that judge's hands and here the plain of appellant has produced enough documented evidence to show that there is an issue a genuine issue of material fact as to whether