now we're here on appeal from the root welby motion my client is a broccoli fifteen year law enforcement officer who lost his job and then lost a certification on the procedural due process claim ruled that since i did not include georgia police officers not in training council as a party then there could not be a deprivation of my client's due process with all due respect that's like saying that at a trial if a witness gives false testimony the trial judge has to be included as one of the co defendants as simply should not be and is not the standard the faults report and the basis of the fall for report is what caused the deprivation of the officers are to for cation and of course without certification he can't practice his profession not to mention the fact that the vault report cast him in a terrible light that would affect his ability to get a job even when you guys certification back district court acknowledge that there was a new process to claim if post was involved but then also goes on to say that we had a involved other issues of course deal with the truthfulness of the procedures that were went through and the way this officer was predicting we have an obligation under title seven where we allege  complaint that he as a black officer or african american was treated more harshly than his white counterparts now that the city of operetta has a history of this type of conduct the spirit court but the standard there was simply that if there's any evidence supports the city's position the court asked up hold it already mandamus would not have been an adequate or complete remedy is that a reason not to exhaust the remedies and other words that you do have a cause of action when when you have been exhausted with all due respect if it's a futile effort there's a certain practical side of it not to mention the cost of it but a read of mandamus in this case i don't believe would be an appropriate matter i don't believe it's  an option that we would have at this stage of the proceeding it went straight from termination appeal to post and post automatic revocation little vague because they've changed the procedures of the last couple years but primarily you get a review board that makes a recommendation after they've already certification and then based upon the review board they can either reinstate the certification or recommend somewhat lesser punishment or revocation then you can appeal that once that this is done you go before a board i post board and some of the what we're doing now we have oral argument for the board the board then makes required to do certain things such as additional training or so forth and then his certification was eventually reinstated although this was probably case we want people you know he got it reinstated through that appeal process yes ma'am so  did you want to make in your argument about the equal protection of the title seven hostile work environment issues only that again it's a rule twelve b motion we feel we should have been allowed to present evidence are your client was those without progressive discipline right terminations and white was an impossible job in light of your other allegations that this is been going on for complaint why you could not identify just lease someone because you can think about the law is that i could say other people were treated differently it requires to be plausible it least name one person  terminations offense especially whether in this case where the circumstances were so unique certainly we have this one or problems with and police departments and so forth i i would have had and gauge and discover number one to find a policy which of course we don't get until we get into beyond this nd it's not just a courtesy ride discrimination situation we're saying that there are certain circumstances where you have a two level situation where one officer will black officers when they do minor violations or terminated white officers or not they're given a lesser discipline and the city policy itself has called for progressive discipline in this case the appellant has never been disciplined fifteen years and he does a minor violation if there was a violation we deny ther you a chance to be heard after we hear from mr bean thank you good morning your honors my name is brant being my place the court i represent the defendants at least in this case we are here on an appeal from a motion to dismiss while a lot of the facts that court the st complaint was dismissed because it was a shotgun complaint and i think you can see how that might have happened here the nd complaint following an order describing more precisely what it is he needs to plead was dismissed under trombley and it should have been because the allegations of fact here to the extent they even exist are conclusions like plaintiff was treated more harshly less a conclusion it's  he treated more harshly by whom when where some facts that make this claim plausible that's the standard it isn't just notice pleading i have a claim i'm aggrieved under rule  trombley require that fax be pled not that you have to plead everything you know or take discovery on it although i will note in this case this is a public employer subject to an open records act but you've got to plead facts that support the claims he serially didn't do it here it's the paradigm of a kind of complaint that should be dismissed under rule twelve b sex now we learned this morning for the st time i was unaware of this that the man has this post certificate where is the property deprivation is has lost anything so that claims out what to deal with the due process claim i think well that's not part of the record evidence violation my property interest to the extent that's actually pled here one of the elements is a state action we didn't deny him any property we're not post there's a there's a district court straight on point here from the northern district says hey you didn't sue post houses on the denied your property you can't sue the municipality they didn't do it now he wants to string along the fact that there's a false report that caused that ok maybe maybe not but there's new facts or pled that show that causation in fact there's no facts there pled to show the report was false that too was a conclusory allegation of fact it just says there's a false report and now we you know he also includes in there that well some of these violations were actually minor but where it was the true minor violations that were included in the report so you know there's not enough they're afraid to process violation of property interests and with respect to a liberty interest to the extent he wants a name clearing hearing i guess that claim is in town certainly just trash looked at it he doesn't have a right to a tree terminations name clearing hearing he does have the obligation to file a writ of mandamus to the extent the procedures are deficient in order to clear same post terminations he admittedly never did this this court said that means you failed to state a claim as a matter of law furthermore this issue has never been addressed by the plaintiff or with respect to the claims under title seven for disparate treatment and hostile work environment disparate treatment requires some allegation of disparity we have here are and conclusory allegations the fact that he was treated more harshly that is not enough to sustain a claim twamley it doesn't it's not plausible it's a conclusion there is the one case that the appellant cites is a case called searching and insert tain the district court required the plaintiff to plead elements following the mcdonnell douglas standard which of course would apply here but not at the pleading stage it's an evidentiary standard so this court reversed the district court and said you didn't apply it all in plumply you applied mcdonnell douglas distance wrong we agree the case doesn't differ from our argument we think it balling finally should apply here in fact did apply here because of the way this st amended complaint was pla for example there's no allegation of fact whatsoever that the decision maker harbored any racial animus against the planet i mean this is pretty crucial right  whether the decision maker was the same or not whether it's a coworker or is a supervisor there's just nothing more here than this this suggestion in conclusion that there's disparate treatment all we know from the complaint is the plaintiff is black and the plaintiff was fired if that's the standard then then anybody can who is in a protected group can come into court but it's not the standard is it we've got to plead a little bit more as to the hostile work environment there's no harassment alleged there's nothing here that would suggest that this so called harassment which i believe is supported by an allegation of white officers being promoted more if i read the st amendment complaint correctly but this is not a failure to promote case but if that is progressing who did the harassment supervisor coworker it's important as you know when did this happen how many times did it happen this is important to determine whether it's severe or pervasive what specifically was said were there racial epithets we don't know it's just a conclusory allegation of fact that is wholly insufficient to support this claim so i will tell you and conclude my time early and be happy to receive your environment kind is not difficult to resolve because there's not enough allegations but the race crime is troubling because he does with some details  here's the conduct that was violated on people who someone conduct and they want terminated and so forth and he argues for i can't give you an example because i haven't had discovery yet and i agree certain about my own douglas and so it doesn't answer the question here which is the only case i could find all the other cases actually so he's come closer and dismissed it yes maybe what do you say about the argument he can't adana for you would agree with me if he said joe smith went part it's one sentence and he says i don't want to do that until i get discovery so that's the argument how do you address when you're perceiving on some are on compared to ours and they don't just have to be not nearly identical but some are materially samar why doesn't he at least get some discovery on that juan klein because this court has said repeatedly that that kind of allegation where you parrot the language of the elements of the claim in a conclusory fashion is insufficient but how do you how do you know where that is exactly what happened without getting the discovery open records act in this case all white white people are treated differently and if it's it and if it's not a disparate treatment claim but it's a different disparate impact claim which it's not then he could plead that way but this is this is as i say it's a aggrieved because somebody was treated better than you he you know who that somebody is and if you are so abused that you don't then your lawyer can say well we'll do an open records act and we find out who that is or we suspect that's happening doing with your question about how do we find out and term affairs and just plain are usually confidential and simply saying well joe was created different than  sufficient in any way shape form or fashion so without discovery there's no way that a plaintive can really prove a disparity of treatment along any line of race sex color creed foundation and hopefully i would not be guilty of that as far as the other i'm glad the council can say didn't read a mandamus and never came into this case because post took care of it later but that doesn't change the fact that my client lost his certification for an extended period of time and because of false accusations so i respectfully reserve the last few minutes of my time to answer questions from the court