final briefs were submitted in this case an argument important cases have been handed down by this court that they are very heavily on the issues raised in this case primarily lewis versus city if you consider dealing with proper comparatives and so that is an important issue that we need to talk about this morning but this case also raises i think a question that's  i'm sure the court is somewhat familiar with the history of those amendments but mcdonnell douglas was decided fifty years ago approximately fifty years ago i mean not a lot that i was just starting to practice then and it's and it has served well for a substantial period of time to help organize the evidence but the nine hundred and ninety one amendments made very significant changes and these changes are appellant contends the district court case this is a mixed motive case and your complaint suggests that it was a mixed motive cases our complaint doesn't say one way or another other than that it indicates that there was a tardiness issue involved with all of the a number of the employees there and that she was terminated which we believe was her race and that under the motivating factor test the statute makes it clear that it would be a violation of the law if race was a motivating factor even if other factors were involved in the decision and what that really means by statute is that in any case where race is a factor and there's some of this is the question this way did you are even the district court this was a mixed motive case yes we did ok yes we did we did make that argument and the court rejected it and it's hard to tell from exactly what the court did but that i mean how did you express articulate that argument before the district court how did we articulate it we set it out by saying that this is what the statute requires is a motivating factor test under the  one amendments and that we can meet that standard that i'm rationalized that she went through the mcdonnell douglas analysis and that the district court would have assumed that was the approach you were taking based on  well the mcdonnell douglas analysis which is merely a procedure for managing the evidence is not a statutory require i'm just talking about what the district court looks for signal right and every generation say and i'm never say  it's motive is not the language of the statute so we use motivating factor but mcdonnell douglas is not irrelevant in a motivating factor case and that's because under mcdonnell douglas claim or case but that framework does not apply to a mixed mode of claim so if this is a mixed motive case we would analyze it in a somewhat different way right some yes somewhat different way right the district court took it as a single motive case not a mixed motive case they did she took it and the district court took it as a circumstantial evidence and get started but the circumstantial evidence could apply whether the claim arises under a single motive theory or a mixed motive theory right the fact that it's circumstantial doesn't really tell us whether you're traveling on this theory of liability or that theory of liability and and after death a palace that's correct right so tell me why the district court was wrong to analyze this as a single case and why the analysis itself the conclusion it reached was wrong under a single motive mcdonnell douglas approach i'll start with the mcdonnell douglas approach because the  myth failed to establish a promise they should case and in making that determination she sets out the law and cites a case called benjamin at great length i think she quotes the district court quotes benjamin that goes over a page in one paragraph to say this is what the standard is what she excluded from that quote in the middle of that quote as a footnote is footnote three invention meant that sets out what you must prove to establish a prime official case and mcdonnell douglas in a discharge case and the elements set forth in footnote three in benjamin from this court you have to prove you're a member of a protected class the smith with african american qualified for the job she was doing the job and it got meets or exceeds evaluations she was discharged she was replaced by someone outside the protected group she was preplaced by miss hicks a white woman there is no question that miss myth and the evidence met the benjamin standard the court didn't cite that standard however it set forth the standard from a failure to promote case which said that she had to prove something different then to some what may be priests aging what lewis was going to do said you have to show a comparative or as part of a prime official case and of course compared  evidence is one way show a prime official case it's not the only way it's not the only way also just of a summary judgment because there's the quote most seiko circumstantial evidence numbers of different ways but then even apply the tests she said about comparative she misapplied the comparative analysis by saying miss myth could only compare herself to a person who did not have the same record of violations of the rules and ignored the white people who had violated the same rule that mis met the vile r r ruling and bark in lewis said that we define the comparative who is similarly situated in all material respects applying that here it seem to me and you can help me if i misapprehended this that the only other employee secretarial employee whose desk had to be staffed at all times during her working hours was konnie thomas and that therefore conny thomas would be the appropriate comparative for smith but the problem there was that there was no evidence that thomas had any tardiness issues what am i missing in so far as i lay it out that way let's i'll end with your  st point because i believe the decision cornell versus brennan seven hundred and seventy five federal appendix six hundred and thirty from this court over the summer of two thousand and nineteen spoke specifically this question where mr connell was being forced to wear uniform under the regulations of the postal service was complaining that the women didn't have to wear uniform and he was being criticized and they were not and leaving aside the court found he hadn't suffered materially adverse action court made it very clear that was an improper comparison because the women had not engaged in the same product i e they weren't wearing the uniform and so that's an improper comparison and cited louis for that proposition so in looking at lewis there are factors that were identified st gen guy so tell me who the proper comparatives are here at the proper exactly what the factors are identified in lewis those who have engaged in the same no i understand the law i want you to tell me specifically who give me the names nancy smith and smith who never showed up on time for over one year tracy town's a receptionist who also had serious absentee issues and then miss hicks who was hired as an aide to cover the front desk and was tardy and there's some material issues of fact in dispute about what are reporting time was it was seven o'clock says her supervisor she says it was changed but you have to resolve those facts in favor of this myth those three had attendance records that were significantly worse then and the smiths they were all white they were subject to the same policy the principle in fact it held a meeting and advised everyone there they are expected to show up on time no exceptions and did their job require them to be staffing at all times during working hours at the desk this is where you base a the answer is no but it doesn't matter well but that is the distinction is there not that's the distinction the defendants have made and that is where the importance of the motivating factor distinction becomes smith demonstrated whites who had the same attendance problems were disciplined this way now the defendant came forward either as a legitimate nondiscriminatory reason which they only have to articulate and say yeah but their jobs are different to explain it would have the right to show pretext court never got to pretext but under the motivating factor standard once miss smith showed there are factor we also considered not just your tardiness but the importance of your job that makes it mixed motive motivating factor and they doesn't matter does it matter that after  plaintiff got her a valuation and said now you need to work on this this is important we want the desk to be manned but nonetheless she was late ten out of the thirteen days following her performance evaluation it does not matter  why is that when you look at her tardiness it's typically less than ten minutes and she is late and she's working on the boss is telling him look i'm still tired of having the parents out there you're not there to answer to man the desk  right this is becoming a real problem and her reaction to that is to continue to be late well she is late she's she's tardy he doesn't say the same thing to any of the white people that he value ways at that scene on that very same day and in fact for the woman who never showed up more than an hour late for three hundred and fifty seven dollars days he listed under attendance reliable now what we've got is a very different standard being applied to miss mit and that has been applied to any of the white individuals i see my time is that the district court i think got it wrong in terms of the comparison the comparative analysis has been rejected by this court in the connor case the one that the defendant or the apple is advocating and we would suggest that the case needs to be reversed and remanded for at least review and turn in light of lewis thank you may please accord i'm mark boardman together with my partner cate watkins we represent the vestavia hill school district which is a right outside birmingham which the principal one of the principals involved with my kids teachers and kate's kids will be going to that high school and  thing is from high school and the school system again dr todd freeman the issue here with regard to mixed motives let me start out specifically with that because the key on this case is when someone is absent a party that she showed up but she is tardy eighty seven percent of the tom i e only present over two years on time thirteen percent of the time when they all walk through the same door the high school to come in the students and the educators and all employees then that's a problem and under alabama law the way we operate things is everybody employed by the board of education can have tenure after three years of employment you've got lifetime employment if you survive three years whether you're a janitor a secretary a teacher all those employees are going her plenty of time she's paid through the end of the academic are saying anyone with ten years is not a comparative because the standards are understandably going to be slacker for those people but you're really tough on the brand new employees yes ma'am your one hundred you have to be that way because otherwise you're stuck with them to compete for your life or there's one of the however long you're going to be in that system so when you look at if i may have somebody was like eighty seven if we had the same employee that has tenure you would have been able to fire that person you probably would have been able to fire that person but  much more difficult process you're going to give them all hearings were gardeners because i mean not for non renewal you don't want to get a hearing under alabama law but if you were going to terminate someone either made year or not invite them back to the next year after their ten year you're go alabama you're going to be there for the rest long as you want to continue to work but if you're late that meant that often and to think of the story we're trying to send students they're all walking in the same door the reason i walk in the same door is no separate employee entrance because alabama's code red law requires us to have only one door they can get in and out all the other doors locked from the outside so everybody walks in all the students walk in the same door that she's walking and late for now if these students are tardy we will get send them to alternative school will take some type of action against and we're trying to teach them you do not need to be tardy even if she comes in if she comes in late with them she's walking in with them if she comes in late and she's not there they've already walked by her desk to get to their classes so it's a very very important issue now let's talk about the  u start out with mixed motives so i want to start in that area before we get to that question did the plaintiff in this case tell the district court at some point in the proceedings that this was a mixed motive case rather than a single motive case we don't think so here's why it's two sentences in their brief they only say motivating factor they do not and argue about the continued viability mcdonnell douglas paradigm in assessing evidence and citing to quick and that's on document forty three page thirty two dash thirty three the they didn't there's no there's never the word mixed motive in any of that there isn't even a word mixed motive in the statement four is the age discrimination issue and number six is did the core court error in the summary judgment stage by resolving factual foods in favor of the movement and my view in the light most favorable to the movement so that's not even here really on the on the don't mention makes no to me ask you this question at what point in the proceedings is a plaintiff obliged to fish or cut bait and indicate that she's proceeding under mixed motive rather than single motive you know the way i want to answer that but not just that you don't have to you certainly can't say the complaint alone must indicate that pricewaterhouse makes clear you wouldn't say that at the complaint so at what point does a party have to notice a court we don't really answer that question in a quick but there seems to be considerable confusion in the district courts when that di has to be cast i know how what's your view on that like you say it has to be on the plate but i don't think you going to do that i understand the part from price waterhouse that says you can raise it essentially in your reply brief but gee golly raise it in your reply brief to the motion for summary judgment with more than two senses and use at least the word motivating factors of the not only the court but also the defendant in following that reply brief to the motion for summary judgment knows what's going on right so you view is that at least at the stage of summary judgment and the plaintiff's got to make clear if she's proceeding under oath and exploded theory which is exactly why we included a defense in our answer they say that that was gave us that we were on notice there was a mix motive because we used defense in our hands we put it never answers it says regardless of the reason there was actual grounds for terminating her legal grounds for terminate her because i mean i use it in this situation i don't know when the complaint is filed in the time we get to trial what's the what the status of the plaintiff ish she may win a nobel prize between now and then but my argument would be to the jury and that's what i want to be able to preserve that when she's laid eighty seven percent of the time it doesn't matter that she's won a nobel prize  a county thomas so there's to see what kind of thomas did he she handled check ins and check outs so if your show up late for school or your parent has to check you out that's why they kept her from seven hundred and forty five until seven thousand three hundred and forty five on the other hand the plaintiff was the one who answered the phone all phone calls go to her desk she had to be there at seven o'clock all parents have to go to her desk and less their children to check in or check out we have a whole list of things that she actually was responsible for in addition to all vendors and she's the only compared to largo's that all these other folks that had tardiness issues as well should also be considered compares why did you say no to that well because you all say in when you're in the similarly situated and all material specs you ought to very specific about you know also that they all have to be subject to the same employment policy guideline a rule is a plaintive well that's the only desk that had to be fully manned additionally there are other distinctions that do not make them doppelgangers to a unicorn for example the st person they talk about nancy smith nancy smith was a tenured employee who was dying under the americans disabilities act or anything modicum of sympathy it was very cruel to say hey had that she ended up with because she was sick and because she'd and then she ended up dying that's where position came open then there's and she does not work in the same area she works under a different supervisor she's actually a bookkeeper she don't even work in that same area and she's got a different supervisor the next person they want to argue was tracy townes tracy towns a number of differences st different supervisor she's lent it was no doubt about that she's like different supervisor different location she's down the hall and around because she works in the guidance department number three her desk did not need to be covered at all times very very clear she goes to launch wherever she goes she don't have to have somebody sit in her position on the other hand if the plaintiff wanted to even go to the bathroom she had to have somebody covering her desk a somebody has got to answer that phone and somebody has got a great those visitors and parents when they come into the school somebody has got to be the person that is the face of the of the of the school and that's what her what her role was th distinction is she notified her supervisor when she was late and she explained why she was light the why she was late was because her father was suffering from a disability and disease her father she was the only child into time at tracy here's what i say she's like the interim principal said well i think her hours are from seven dollars to three dollars but that's accurate only during the st week as we established on the record in the record without dispute from the plainti there if you look at it from from that standpoint to that is not an interested witness she ended up getting a position on the recommendation of the guy who taught my kids when he was a teacher now as a principal the twenty two to be put in this position he did not know what the person who made that recommendation didn't even know about the calling and that's one of the other unique things about him hire an alabama about this board of education what you do is you apply to that school and that principal then makes that recommendation it's a different principal who made these recommendations from the principal who was in charge of the plaintiff at the time then that recommendation goes up to the superintendent the superintendent has to make that recommendation which is a rubber stamp and then it goes to the board of education for actual approval so there's no evidence any of those other individuals knew knew that that was that was even there so bottom line at this point we're talking about somebody who was absent a majority eighty seven percent of the time again it does not matter if she is nobel prize laureate when you have a unicorn to adopt a ganger who is the exact same person in the exact same circumstance who was there all the time by the way that employee ended up being ultimately was not renewed also for different reasons but it was in the next year after that then we've met is that she was the only african american who was terminated but that's no more the law that evidence does and then she cannot be terminated because she's the only african american employee there's got to be some type of as you said in in quick there's got to be some evidence of some type of race or a jew or whatever the the protected category is that motivates this action and there's simply no evidence there they abandon their hostile environment on there's no evidence that anybody who was in the supervisory capacity even knew that she claims she had some type of problem so overall the court just whether whatever standard you apply even if even the mix motive standard applies then she's still not the she's not met that standard the remainder of the argument is would do deals with mcdonnell douglas and whether that's the accurate standard and i'm not going to presume to say that i don't know how we've missed it since one thousand and ninety one dollars and that should be the standard but the supreme court continues to use akyol continue to use that news versus union city number of points with regard to the eighty seven percent absentee rate i believe the district court judge concluded that there was no evidence to support that figure that merely was the guestimate and she permitted that testimony to come in not for the truth of the matter but for what he believed was correct but we do not doubt that she was tardy we just question the command somebody got back through the records kind and i believe our summaries that we submitted we went through only and identified the days when she was tardy and so if the number was an eighty seven percent in your view what was said to it may have been fifty percent it may have been forty five percent i didn't do those numbers it certainly wasn't one hundred percent i mean if he cares and i've practiced leaving aside the case law and all that practical you're the principal you really don't want to hear parents and people angry outside because the person at the desk is not there there's a lot of clatter and you talk to the employee inside look the number one thing you've got to be here you've got to be here and you're late all the time and after you talk to that ten out of the next thirteen days she ignores that directive i'm not saying it's purposeful insubordination but what do you do particularly given the fact that want she gets tenure you're not going to have any leverage at all  what is the principle supposed to is it is a problem and of course one would expect because her job was so important in september when she was hired instead of having an insane everyone is expected to be here on not he had to and she had all those days to show she got the message and she didn't mention the message ok and she's the only person she spoke to and let's look at that so nancy's error anita smith should be there when  parent shows up at seven o'clock and says i want to talk to the guidance counselor so her job is to assist that person and say you go down the hall go down here and go to that desk now the guidance counselor who's been secretary who's supposed to be here at knows what sometimes because a whether there were people there the principal was there the principal secretary was there there were people there to make sure there was no problem and in fact i think they described her her is it a factor other than her race because they clearly they're under the same policy just a few things with regard while you're a stat of time i think you are out of time so i will give you one last word counts with regard to the tenure question and this problem mr towns tardy one hundred and thirty eight dollars times in ten months was granted tenure so here she was she was approved for rd year and gets tenure and there is no evidence on the record that nancy smith requested an accommodation under the eighty a flexible work hours under the f m l a that is all argument of counsel thank you very much thank you folks will move on