the other thing i'd like to point out to the court is that this is an appeal from a summary judgment and the reason why i do that is to go to the standard of review which is denote and i do that today because of the way the case came up apparently the magistrate judge under rule fifty two asked opposing counsel in the situation to provide findings of fact in conclusions of law and the standard of review under those circumstances is a lot less than did novo and we want to but what to me the crucial issue in this case is whether or not the pretext showing was met by your client so that is the issue a pretext go to trial in that regard and i would direct the court to the arbitrator's decision with regard to all of the claims that were made against mr bos his germination essentially were found to be improper he was granted suspended for two weeks but it was not based on the plethora of allegations that the city and county provided to the court saying this is the reason why mr baza neck was terminated if if the court looks at the arbitrator's decision he finds that all of these claims except for the involvement with mr shiels and mr in the bursting into chef collinses office were in consequential and could not be the basis of the terminations and we've argued and i argue here as well what we've shown and this court has determined on a number of times that want there was a deviation from the standard normally  was conduct that was a minimal to discipline correct well i think the arbitrator pointed out did no discipline had been provided for that it all that was provided w letter indicating that such behavior in the future would be improper and that one should not bring a pocket knife for it was a pocket knife with m bosniak to the workplace did not find that that that was something that that was a cause for discipline because he essentially wasn't disciplined for that he just got this warning question i want to go back to the fact that this court has found in any number of instances where there's been a deviation from the actual rules and regulations of the workplace up that is cause for concern and would be the basis for a possible claim of discrimination here the arbitrator's decision one show arbitrator say that a suspension was in order not all of the actions were credited your honor if i if i'm misunderstanding what you're saying to me i apologize well i thought that you were trying to convey that the charade or completely vindicated your client and to me the record does not support that at one level i am saying that because he was vindicated in that he was not terminated i did not make the argument and if the court misunderstood me i apologize not being clear i did not say or imply that there was no punishment given to mr bosler but the cause of the cause of action here are about the terminations essentially that in the context the pretext to me it's important whether or not the matters that were the subject of discipline were actually discarded by the arbitrator or partially credited by the arbitrator well again the operative function being the plural the actions there was only one or possibly two out of the about eight or nine but these posited for their position of this being the nondiscriminatory nondiscriminatory basis for his  terminations in order to prevail on your title seven claim you have to offer direct evidence of discriminatory animists or substantial evidence of pretext what is your showing allegations and showing that there was a failure to go through the chain of command to provide it i prefer to need to correct in the disciplinary problems thing again was the failure to follow the progressive discipline charges or procedures that the city and county had set up which we indicated in our initial situation regarding substantive due process and the reason why we're not pursuing that further is this court's decision in the class of one case in oregon saying that that one had to essentially be barred from employment in other war in order to show a substantive due process claim but  again there was evidence that there was a failure to follow the appropriate procedures are a case that the stablish is that's a sufficient showing with respect to either disparate treatment or association of them is discrimination well i think on under lam this court says that there doesn't have to be a great deal of evidence to that regard and it's for the fact finder in this case it would be a jury to make that determination i'd know of no case your honor that says under these exact circumstances this isn't enough but again certainly under sanderson plumbing the supreme court said if there is evidence that undermines the position provided by the company that should be sufficient again part of the problem here is under  the mcdonnell douglas approach is all of that the employer has to do is articulate a justifiable reason and i would posit to the court here two things that to show pretax one only has to show that the underlying positive  nondiscriminatory reason is not worthy of belief or at least should go to the jury in that regard and i would say that sanderson takes that position in response to your question well what that they had no effect at all in this regard because they were too old and the testimony of mr chan did not substantiated with regard to get into the pocket knife situation there was not discipline at all given to mr bosniak in that regard they said that he did something that caused some people concerned and there was a a memo that indicated a change in procedure or at least a clarification of procedure with regard to we don't want you to do this and again if one looks at the record there is no indication whatsoever that it was ever done again ah i see i'm down to three minutes if the court has no other questions i would reserve the rest of my time for rebuttal and i thank you pretext he did this issue did come up in the court below where mr mcneil attempted to make the same argument regarding the irish leaders decision as a pre if you'll allow me judge james made a finding on that very specific issue she's noted and this is that a c r fifty that the arbitration award does not support plaintiff's characterizations of the document the arbitrator did not find the incidence for which plaintive was disciplined to be trivial did not find his allegations not credible on the contrary the arbitrator found the city had every right to counsel plaintiffs on the inappropriateness of using a pocket knife in this matter and that the evidence in this case does show plaintiffs seem to have a problem dealing with the fact that he was no longer a chef and was now a cook and goes on to discuss that so i think that it's a bit of a red herring to talk about the arbitration decision in this manner additionally the standard in that arbitration proceeding was just cause which so there's no question in that proceeding as to whether or not there was discriminatory animists there's no question as to whether or not the city had any other motivation in instrumentation from his of was simply just cost entered which is completely separate from what we're looking at here today and i don't think that it shows any pretext whatsoever in terms of not following their own procedures we do have evidence in the record that these procedures can be the procedure of progressive discipline can be interpreted in different ways r nine thirty three and nine forty six we have the declaration of willy ramirez who was the head of h r for going to hospital at the time who states who shows that under the guidelines of uniform discipline mistreatment of a person can be grounds for discipline on a first offense so whether or not the arbitrator agreed with that interpretation of the guidelines or doesn't doesn't go to pretax we would argue in this case  i wanted to also address mr macneill's arguments about association with discrimination mr mcneil appears to argue in his brief that or he does explicitly argu his brief that simply by having an association with a colleague of another race and then receiving an adverse employment action establishes a prima facie case we would strongly we see with regular title seven race discrimination you have to go through the same four prongs it with the exception that with the first prong of protected activity your association with a person  protected class now becomes your protected class however we still keep the same fourth prong which is the causation prong which i think is very important and cannot be overlooked mr mcneill has not shown any causation in this case and i think that's a very important distinction to m with regard to his retaliation claim he also would say that he hasn't shown any pretext for the legitimate reasons that the city has given we think that the legitimate reasons for termination in this case were extremely serious the flicking of the knife the verbal harassment of his subordinates and angry outbursts also towards his supervisors are something that most reasonable people would find someone could be terminated for and in appropriately asserts a standard of appropriate in appropriate compared to ours in the in his issue his claim for discrimination meaning that if we are putting too a comparison in as to who he should be compared to in order to see if he was treated differently from other people  own briefing he said the appropriate compared to a would be another employee with the same supervisors who is held to the same standard and who was found to have engaged in similar conduct and who was there then treated different position and they did not have the same supervisors and therefore you cannot say that they were necessarily held to the same standards and he has righted notices of anyone who engaged in some way or conduct which indeed it would be difficult to do because the conduct engaged in was so serious could you explain a little bit about just going back to the to the arbitration what do the rules provide with respect to that and what do you understand his plea to be as to how he was  my understanding mr mcneill's argument is that because the arbitrator reinstated mr wozniak after he was terminated and with only a two week suspension there for that per n shows that there was some pretext or that this term a nation was wrong and therefore because they were wrong to have done it therefore they there must be some discriminatory animus i think that that's a bit of a conclusory argument because as i said there's no the arbitrator doesn't even have jurisdiction over claims of discrimination retaliation things like that so his only goal or task in an arbitration is to see if the city rose to the just cause standard in terminating mr bosniak which again is a mutually negotiated term standard between the city in the union and part of that is progressive discipline you know did did he find that they went through enough progressive discipline before they got to terminations and what's the significance of that progressive discipline issue you heard mr m well the significance is that under the just cause standard you have there has to be anough progressive discipline before you get to terminations so unless something is very serious you know you can skip to terminations when there's a very serious matter of conduct but normally they want you to go through progressive disciplining meaning starting with a one day suspension moving up to a five or ten days  this case it was serious enough yes exactly and i think that lying on the knife relying on the  problems of working with other members of the the kitchen mistreatment of a person yes and we even under the guidelines in the record where i've cited an s c r nine forty six it does state that for the conduct of mistreatment of a person on a first offense that can be grounds for termination if you're on is don't have any other questions i'm happy to submit here's not and the paragraph where it talks about the arbitrator's determination and therefore i have determined that the city did not have just cause to terminate the grievance however the city did show that the grievance was on notice that his behavior was disruptive and he should have known that confronting mr shields in the manner that he did by interrupting a meeting he was holding with chef collins was not appropriate it does not talk about the other things that that the city brought up there for certainly under alexander vs garden in denver there is something there because the supreme court said that an arbitrator decision can be looked at in terms of what it is to be shown going back to judge scanlan's question with regard to that the other part of it  that that that is bothersome that progressive discipline is designed to in order to put an employee on notice that his or her behavior is improper and can be improved that's what the the situation is about all of this sort of comes out of the blue and it's part of the guests thought or or the seventh circuit talked  mosaic of discrimination here again mr bosniaks immediate supervisor was never informed of any of these complaints these people went directly to willy ramirez and other people never going through the channels that would provide someone an opportunity the last part i would like to address would be talking about comparative hours and what the city really wants as a clone the seventh circuit has made it very clear that that's not what the standard should be and the same supervisor chef collins indicates who the chain of command is and it's all the people in that particular good department the same standards mr bosler nec pointed out that individual who had urinated in front of the hospital was not even suspended for any amount of time of the person who allegedly stole had nothing done to her other than to get a warning so that the type of behaviors are certainly comparable in terms of looking at what one should evaluate it's not again the idea that i'm i did exactly the same things but are they comparable counsel thank you you've exceeded your time thank you to both counts of the case just i get is that metaphor decision by the court that completes the calendar for