yes i did yawn hours or three minutes maybe hundred when my clients first approached me about this case i indicated to her and would let she had a number of wonderful facts she came to me after she had filed  multiple complaints with the federal highway administration she to comply with their rules she came to me after an investigation was already ongoing by the federal highway administration what i told her at that time was that her biggest problem was that she was going to face and in order in among motion practice and that this case really was going to turn on whether she could overcome that motion practice because this case if it ever got to a trial of fact was one that she would likely prevail williams she may have a wonderful set of facts as you're arguing but she doesn't have a wonderful set of law you're coming up with things here that just don't work you're trying to apply title six in a way that when you just read it on its face it doesn't apply i would disagree with that when you read it in conjunction with twenty three u s c section three twenty four you don't read other statutes to find out what this statute means you didn't bring your claim under these other statutes well you know this of those stats you was in place for federal highway administration projects this was a federal highway administration project and when this issue is there a private right of action under these other status under twenty three u s c section three twenty four new on the last sentence of that particular statute reserves all rights and remedies available to that discriminatory i think that creates a private cause of action for this park if there is a private right of action under that statute you needed to bring a cause of action under that statute that doesn't confer that doesn't change the plain meaning of title six hundred if we end up you have a single case that you can point us to where you've got a claim under title six title seven title nine or whatever it is we read the language and it says you can't do that but then you point to another statute that you say informs that that then conforms to the language of title six seven or nine there's a single case where the court's ever done a single case where the court has ever done that there is the one case that recognizes let me go on to your other problem you seem insistent here that you can sue the state of michigan that you can sue the department of transportation and that you can sue the governor and that you can sue the head of the department of transportation in their official capacity for something beyond injunctive relief all of which is absolutely barred by the eleventh  we consider them as having been served because this was the in the new eve filing system we believe they were surveyed the attorney general represented there their offices it is the attorney general the represents these parties and going back to about the other case that you believe help your position tell me that if there is a single case the reference is twenty three u s c section three twenty four this it references the application of gender discrimination six as part of title six through section twenty three u s c three twenty four is the only case that cites the statute there is nothing in title six that includes gender or sex but for federal highway administration projects sex is made a political this case recognize that fact they next step is the name  business in the state of michigan see this foster was the first black professional engine here black female russian engineer in the state of michigan and arnold similarly situated firm she was competing in a world against large majority firms and what happened was when mr jugnu took over as the head of the sea for the detroit region things changed and she no longer was given those opportunities to compete  for thirty contracts have after this process started and received not knowing where she was a prime contractor there are no similarly situated firms everybody is similarly situated they all submit proposals in a you're trying to bring your title so your title six claim we got that we talked about that now we're into equal protection with equal protection by definition means you've been treated differently than somebody else so what judge onil is asking about is to tell us who you are treated differently than and then we'll try to figure out whether they are are not similarly situated at one point you say that she's a class of one which is sort of what i gleen you're arguing right now but in another part of your brief you say you're disavowing the class of one analysis so we cannot figure out what on earth or i should say i cannot figure out what on earth your equal protection claim is w as i was trying to explain this is a process where all professional engineering firms that are submitting proposals for these services aren't so you're claiming all other professional engineering firms that compete for this work are those are the ones you're comparing yourself to yes ok now how are they similarly situated if they're all professional service engineering firms competing for these same projects set up for be bidders it is the build process that is a stablished by the state that starts this analysis because nobody is if we look at the bid process just to give you an idea of the the difficulty of analyzing  you complained for example about the number of cars under lease requirement right yes that applied everybody right that apply that applied to everyone it was included in the proposal so it applies to protection violation there then i would disagree with you to impose that standard when you know that's a great majority of these large firms have the capital to be able to comply with that highway administration all of these other firms are similarly situated because they are bidders because they have submitted proposals to go this way you could have a firm that has three thousand employees and you could have a firm that has seventeen and they're similarly situated yes they are in terms of competing for this work and they and you can in you have a come a claim that they have been dealt differently by judgment to get to the point of how we were treated differently if actually i think we have laid out in our bridges how we were treated differently we the only person that mr jugnu could not comply with their requirement was was miss foster she was the single d b e in the detroit see that was bidding on these projects and she was unique and so is she a class of one in fact yes because that's simply where she is and if you want to think about it until many rebuttal that spine because you know at the summary judgment stage what the judge has to determine is looking at all of this whether there is a genuine issue of material fact that precludes summary judgment and i want to know what that much that genuine issue is that's what i would and i heard what you told me but i want to know and this is one of those kind of and i apologize i don't mean to be a  with her but i want to know you know feeling a bit like that genuine issue of material fact that precludes summary judgment in this case is x y z younger this case was she was discriminated against by two  a genuine issue of material fact as he walked into the room in this subject the process changed to score sheets after she had been previously rated eliminated her from the process altogether after personal animus he had no personal animus because he did not not part he had no dealings with that to do with the issue of material fact to get to that question then the issue of having similar issues in which he comes in and makes a statement in front of his secretary that look no woman should be making that kind of money why is that not an issue of junior tiriel fact when he makes the statement all the testimony as he makes it and we're into percentages asked whether she thinks well wasn't one hundred percent referring to her when there is no other woman making that kind of money in detroit good morning your honors michael didn't versus an attorney general of the state of michigan representing on a police and your honor is this case can be fairly described as one long and in trade but short in substance when you take away the unsupported factual allegations in complaint and the unsubstantiated of arguments in the briefing and consider only the record evidence in conjunction with the applicable law it's evident that the district court was justified in its decisions and before i put it before you actually get into that i want it i don't i don't believe there was one and even if there was are both title six and the equal protection clause there's a private cause of action only for intentional discrimination there are different spirit impact regulations under title six but those do not contain a private case stated the standard for a title seven retaliation claim and in doing so it made very clear that conduct that may dissuade a reasonable worker from violent a claim of retaliation of what's considered an adverse action under that statute is not the same as discrimination laws and because this is because this is not a retaliation playing using the proper standard for a title seven or in this case an equal protection and the analysis is essentially the same this court has held under title seven for example the primes case that a successful evaluation is not an adverse action and even if it is considered a poor evaluation there still has to be a tangible of future action attached to that that's pure speculation at this point miss foster alleges that she was not receiving contracts and several years prior to this evaluation that came out two thousand and nine and she also received a contract that came out about personally six months after this evalu i'm both ends there is no evidence that this affected her ability to compete to compete in any manner and if you consider that these are two stories of seven on one a valuation the entire valuation is average and then all the valuations are average for future panels to look at and consider so we're talking hundreds of a point here and there's no evidence in the record no contract pointing to that said i was only one point away on this one on the panel said that they looked at my prior valuation scores and it was that was what made the difference now i would like to point to two pieces of evidence to sort of set that set the table for the court and the first is the testimony of cedric jargon that appears at page five and six of the u b s principal brith and he says back when he started p b s was the only firm in detroit that wanted and there's a dialogue there of the employees that have been with the company and been with them duck for a long time prior to joining her company that left the company and so she's facing more competition and this turnover in staff and with that in mind like t similarly situated firms this court has been very clear that you can't say no one similarly situated to me or everyone similarly situated to me without showing some affirmative i wouldn't of how these firms are similarly situated whether it be similar staff similar qualifications similar experience on jobs some piece of evidence to create an issue of material fact on this and there just isn't on the p b s only presented to firms to the district court and the issues involving those firms had there is any similarity between any of these firms though so let me be specific with you the first that the district court talked about or wager and associates  everyone who works for microsoft is similarly situated because they're an employee of the company and finally even if this court were to go through the remainder of mcdonnell douglas standard there is no evidence that mr  any questions mr stitcher again the same problem with the similarly situated prong and if the court were to go through the mcdonnell douglas analysis with him the only inference that can be drawn is that he had a personal dispute or personal animosity towards miss foster the only inference or mention of gender race is the use of the word herb there is simply no pronoun in the english language to refer to a female without using the word her that we basis to respond to the discussion regarding title six the statute is crystal clear what it applies to applies to race color or national origin the only i would get the only argument on appeal is that this record should have included gender  respect to the governor or the director and standing here today i can't tell you what the current ongoing violation of law is that they seek injunctive relief or as opposed to past incidents involving two employees and a longer work for department enclos young whistleblower claim fails for a number of reasons none of which have been sufficiently addressed and unless the court has any  engineering and miss foster in direct response to the court's first court first second question and then as it relates to the case to which i was referencing i would refer the court to him c w again what the state continues to warn of nor in this particular case is the system the system that is being created creates a playing field where b p s engineering competes with all of these all the firms h a n t v u r s great lakes engineering they all compete on the same level what is happening is she is a unique entity in among then went to work for each in t v all these things were planned all of these things were litigated and even as we sit here today that system has not changed there are no black female engineering firms that now exist b f engineering has gone out of business seed or no longer competes for this business that has been the end result of this case and what what has happened here is we never got a chance to really present these issues  or affect the trial court precluded us from doing that and i think there was smoke here and where there's smoke there's generally fire what happened was the trial court's decision doubts that fire and prevented us from from secondly how you meet the standard that's been established by the supreme court but each one of these evidence here you shoes with all due respect your honor is a complete a competing evidence are you sure there's opinions on both sides mr judge mr judge that was trying to do and that testimony was unrefuted in the court didn't address that seated nor that in those are the kinds of issues that should go to the trier of fact with his competing testimony this should be it not for the