was overly restrictive in setting the criteria for similarly situated comparing for this comparative evidence in turn was critical to mr herrera's proof pretax sufficient to survive a summary judgment consider it let's say we agree with you after we consider your appeal point if we don't have if our record is in line to your appendix and those documents are in it well i think  year they all held the same job title they were all aircraft mechanics they all worked on the same aircraft they dealt with the same mechanical issues every day of work they reported to the same manager they all worked under the same collective bargaining agreement between the teamsters local four fifty five and united airlines they were all subject to the same attendance regulations they were all subject to the same  we're sort of falls apart when you talk about some accommodation do we have to have as a comparative or here the same accommodation well that certainly and one that had home detention instead of were pretty much detention so was it was there any evidence in the record that any of the comparative years that you put forth had restrictions that would accommodation for him really i mean he got in trouble he served his time and used his vacation time to serve his time in jail and as far as united was concerned they knew nothing about it that there was evidence about the time records of mr shier but there is no evidence that united knew that he was in jail i believe they did know he was in jail in other words i believe he think i can picture in my mind when jack time records but i think it was well known that he was in jail and that's why the extra four dates you know in other words and that was an accommodation why is that the question you know in other words if they said mr herrick you're a criminal we're going to let you go that they they had thing and then i can see while we're talking about and for three of the compare years to with ankle bracelets you have an ankle bracelet maybe that there's reasons that united may or may not want them to wear an ankle bracelet that they were able to come to work right ok and so there was nothing comparable about the inability to come to work for mr right versus mr mock and mr lieber because they could come to work they just had to wear an ankle bracelet well russell did was there any discussion of whether or not it would have to allow the probation officer or some other state authorities to come on their premises to check on him it never got to that point you know and would that have been something they would have had to allowed i think there was something in the work release guidelines that indicated that the sheriff's office had the right to do and let me ask another question so is there any evidence in the record and in your appendix that would show that any of the compare others placed a similar burden on united by their request well i mean because my memory is that some of these people that were on home detention or had an ankle bracelet that they may not even have told united that they had that that they just they had it and they just showed up to work like in this case is not whether certain non hispanic united technicians were allowed to continue their employment after being convicted of some sort of just mean or offense rather it's whether united discriminated against mr herrera on account of his national origin by not allowing him to continue his employment work police in this case in this appeal and actually in front of judge ito plaintiff attempted to convert this case to one premised on what the united non hispanic technicians to continue their employment after being convicted of some sort of mr mean this court should flatly reject that attempt to change the theory of the case the plaintiff had the responsibility of specifically identifying the conduct challenge in his complaints in order to put united on notice of what the issue was and plaintiff's new theory directly contradicts the multiple references in his complaint to work release and specifically the allegation at paragra his complaint that quote united allowed at least three similarly situated white nonis panick coworkers of mr herrera to participate in work release programs and continue their employment including byron single instance where united supported a non hispanic employees work release request the district court thoroughly analyze the purported to characterise specifically mr mock mr schneider mr lever and mr coffey and found that none was a viable compare or with respect to mr mock as the panel appears to already be aware he was never sentenced to jail there evidence that united knew that he was wearing the ankle bracelet your honor i don't know if there was any evidence one way or the other because that would be relevant if you would make that allowance for him i guess the parallel argument is you make that allowance for him you should make that allowed some type of rounds for mr herrera to permit him to continue working well mr herrera circumstances are vastly different because of the sixty day mandatory minimum he was or arapahoe county jail he was granted work release however mr mock was never sentenced to jail so while mr herrera may have had to wear an ankle bracelet while out of the jail mr mock never had to return to jail at the end of the night so in other words apples and oranges mr snyder as the panel was already aware was sentenced to jail time however he had vacation time to cover all but four days so again nothing related to work release relevant to mr schneider and as the panel was clearly aware he was disciplined by united for the four days that he didn't have to cover his remaining jail time well part of the reason for the terminated terminations of mr herrera is i understand it was that he had violated the company's good conduct requirements you know by violating the law now these other gentleman had done the same thing nothing nothing was held against him for that they continued to work for united even after their conviction that's correct your honor however and mr herrera was applauded for voluntarily informing his supervisors of this arrest so there is no united never believe that mr herrera was trying to cover anything up however it all goes back to the work release work request of mr harris and the work release request and the restrictions inherent in a work release program are vastly different than a technician us to wear an ankle bracelet or even mr snyder who was ordered to serve home detention so your honor as a sergeant that it's concerned it's all about the work release request and not the underlying criminal action with respect to mr lieber he's another one like mr mock was never sentence of jail he was sentenced to a student he was required to wear an ankle bracelet during which time he continued to work at united mr coffee as i just alluded to was sentenced to one hundred eighty days of home detention now united submits a home detention and work release from the rapido county jail are by their very nature different however even if there is some corollary between the two as the district court referenced in its order granting united's motion for summary judgment there was no evidence admitted by mr herrera that mr coffey was non hispanic there was no evidence of emitted that the home detention corresponded with mr copies employment that united and with respect to a question asked of mr bowles there was no evidence of minute by mr rarey that united even knew that mr snyder only with no jail time involved we have mr snyder who was not a work release participant and we have mr coffey who i just alluded to your honor who was on home detention however as i indicated no evidence that united even you with respect to mr of yellow who was the other employee was in the custodial group along with mister schneider the court correct the district court correctly determined that mr avila was not a viable comparison or because he was jailed without work release the work release wasn't even an option for mr of the law touching quickly on william bragg who was the united technician out of san francisco international airport the district court correctly found that it wouldn't consider mr bragg as a potential compared to work because there was no evidence of emitted by mr herrera identify mr bragg's race whether this alternative sentencing agreement that mr bragg was subject to was a comparable work release program and finally whether mr bragg supervisors ever  united based its decision that i would support mr aris work release request on his inability to freely perform his job responsibilities without the restrictions inherent in a work release program as judge carson touched on earlier the risk that mr herrera would not would not be able to predictably attend work during his incarceration and while on work release the fact that of work rel work release was approved for mr herrera it would need to be considered and potentially approved for all of the united eighty five thousand employees and finally the fact that linda ross whose name is mentioned throughout the record this ross research didn't reveal any united employee who had been provided work release and that research of miss ross was was far that research involved canvassing colleagues within the technical operations unit of united airlines speaking to senior managers managing directors h r directors as well as canvassing united employees within the labor relations departments and legal departments isn't your real problem here that the district court narrowly defined the definition of a similarly situated employee and basically took away the plaintiff's ability to find some comparative hers i don't believe so your honor because plaintiffs she'd this case up as one premised on work release and when discovery revealed that there were no other united employees non hispanic employees who had requested work release let alone been granted work release the theory shifted to one based on  hours that mr herrera put forward most of which are named in his complaint and found that none were viable compared to ours because none had applied for or granted work release from their custodial jail sentence so unless the panel has any other questions i will waive the balance of my time by ending that judge ebell thoroughly analyzed the evidence and found that mr wright had not come forward with any evidence release request and the other terminations i believe your honor goes or they could be looked upon as that way but i think they're one of the saying without work release he couldn't report to work for sixty days he only had enough vacation time unlike mr snyder to cover fourteen of those days because of that there was no one does that we should look at terminations as the adverse action correct part and parcel with the fact that he had to be terminated if the work release request wasn't granted thank you these issues that mr o'connell raise that is it clearly indicates that the scope of the case involves the comparison of the treatment of the misdemeanor convictions of the all the the other thing  were able to locate a work release agreement which is you know virtually identical to the same work release type program that mr herrera without any access inside access to united records  whether whether other employees who have had work release were allowed to continue to work yes and were any documents produced in response to that request well as i say no i mean  ross in fact we took miss ross's deposition and she went through the effort she had made contacting people to try to locate but we're talking about eighty five thousand employees there and the fact that none of them had ever been on work release in the past