a decision by judge darryl on february twenty fifth two thousand and seventeen granting the defendant's motion for summary judgment on a race discrimination and retaliation claim under section african americans the right to make contracts and to enforce the terms of the contract in this case we believe judge darryl erred in the interpretation of the collective bargaining agreement and in particular article seven point three eight when you read in conjunction with section seven point one a and b in this case in the portland class a seedy you know driver's license he had that but i guess what i understood from a collective bargaining agreement is that there really are two separate units the repair unit basically and the operations unit that's correct and that seniority ran separately for each one so when you move from one unit to another vance for this mechanics position they both have a zero level of seniority because it's outside unit ok so the company looks at other factors such as the resume in the past experience i understand that but i was  know it's not a qualifications but look at this gem the express language of seven point three craig and it states when and when the company determines that there will be a in the number of employees in any seniority unit a reduced employee selected on the basis of factors outlined in section seven point one eight which is a sin you already section and so seven point one b which is the qualifications section of this article may x or sizes or hoard your unit seniority to displace the least senior employee or  so what the judge in this case has done is has limited the meaning of section seven point one b qualifications mr oliver had the qualification namely the cd you know a driver's license plus hazmat certification but i think you and your opponents argue that it works differently if i understand that you can tell me why this is wrong if you want but i think they suggest that layoffs happen on a strict seniority basis then you have a group of people where the post layoff survivors so to speak and to be qualifications  may come into account at that point but they don't they don't ever trump seniority in terms of who gets laid off well then that means that we're ignoring section b completely because under section seven point three it says you're to consider the factors of seven point one eight and seven point one b so what you're arguing for years the court statement fundamental then you give meaning to all of its theories and all of its terms the reading that the union wants to give here gives no meaning to the phrase qualifications in the situation playoff to make to lay off the first persons who are not as qualified as others that's why i'm calling america sure i agree with that and in this situation i i have for provided the court with three are caucasian one didn't have a class a cel two didn't have has maps endorsement or certification on their license that means that they aren't qualified scott snyder admitted that produce it position descriptions for both truck driving positions required both namely a cd l with  that he is more qualified than the similarly situated cock asian employees who were not laid off therefore giving meaning to the both terms under seven point one  and seven point one b we believe that we've created an issue of material fact that prevents summary judgment on this issue as to i want i understand the court recognizes under the discrimination case with rocky vance burson as anthony for the mechanics pollution that that constituted the decision of the employer there vance was brooke about an employer's assessment of qualifications and there's no doubt that mr vance had lots more mechanic like positions on his resume they checked his references and mr oliver didn't have any except his own statement like i'm a great mechanic but that's not the kind of concrete information employer has to be lying on and i'm running out of my time here while you are free to save a little for  it please the court name is kerney killen's and i represent joint logistics managers inc joint logistics is a minority women service disabled veteran owned company it's a logistics company they received the contract to hand of logistics at the rock island arsenal and they did so from two thousand and twelve to two thousand and fifteen when they pillars kilns could you start with that i mean it's reproduced it i'm out of the place bonafide seniority system disallows all over from claiming that people had seniority were similarly situated and so on and so on so how is it an exclusive seniority system when the section seven point one the factors are mentioned the seven point one belief factors regarding qualifications come into play when somebody is challenging a layoff decision for somebody who has less seniority specifically it says the seven point three talks about after somebody is selected for layoff that person so that's the reduced employee that's the reason the right to enter a race to employee may exercise his or her seniority to displace either a least senior or an equal to and when you're looking at equal to that's when the qualifications come into play and the qualifications could come into play if you have two people with equal seniority in the bargaining unit when a layoff decision is made but the statements that were clear in the record that union president the company and even mr oliver agreed that he was the appropriate person to be laid off when there was a layoff in the trucking unit because he was the least senior employee even though he had better qualifications that argument with him up from his attorney for the first time the way this collective bargaining agreement operated it operated on a seniority based system that is what mr spoon said i asked him in his deposition have you ever made the argument based on this contract that somebody had a license or better qualification and therefore should be retained instead of somebody with more seniority and he said no i said why not he said because it's a seniority based system the other part  that really is a red herring is that all of these people were employed by the prior logistics company and they were employed by joint logistics when they came in there has never been a statement that any of these people were not qualified to do their job and the rock arland ace rock island arsenal because they didn't have either this hazmat or class a certification that is something the joint logistics wanted to have in the future for hires but it did not make any of the current employees unqualified to do their job and can you imagine if they had terminated the senior person in the bargaining unit saying you didn't have the hazmat certification he said i've never had to use the hazmat certification we don't transfer dangerous chemicals or whatever is protected by hazmat that would  grievance but when i asked mr oliver did you grieve the fact that you were laid off as the lowest person in seniority he said no i did there is nothing and when he's looking at comparable employees the cases that we cited in our brief and which have not been contradicted by plaintiff at all both say that when you have a bona fide seniority system the way this union contract does employees are not similarly situated if they don't have the right if based on their seniority if they don't have the same seniority so it doesn't matter what their qualifications are you are looking at seniority first but that's not actually spelled out so many words in this contract this must be the history of the card to bargaining agreement in terms of it being be kept that the fee characteristics come into person who is being displaced can try to bump somebody else looking at qualifications as determined by the company through position descriptions and other items and that is and other see what plaintiff is suggesting here is that we should just look at the job description to say whether somebody is qualified or not and in this case there as i said there is no evidence that either the ha certificate or the class a certification was required to do this job to actually perform the job there and then turning to the  decision between mr vance and mr all over for the position in the repair unit as the court  noted it is up to the employer to make a determination as to qualification the requirement is that the employer can articulate the reasons they're usually subjective but there is they have to be rational and we presented mr schneider identified rational reasons why he believed mr oliver was not as qualified if qualified it all for the position that was given to mr vance no it does appear with with twenty twenty hindsight that maybe he made the wrong call well mr vance turned out to be not a great employee that is true but that doesn't mean that mr oliver would have been a good employee again we're back at the circumstance we have mr oliver saying i can do that  and really the argument that plaintiff is saying with the qualification of five years experience he wanted to be five years verifiable experience and he said it doesn't say verifiable but of course when an employer is looking for qualifications for a position they want to be able to go out and verify they need to i could stand here and say i can repair a motor vehicle because i have experience working on my car in the driveway but that doesn't mean i am qualified to do the job  at the rock island arsenal it was incumbent on mr oliver to show his qualifications and once he learned mr vance at the position he's also complaining that it was retaliation that he didn't get to other mechanic positions that opened up but he never applied for them and he never came to jail and i said you were mistaken when you determined i didn't have the qualifications of the necessary experience he never did anything to disabuse them of that notion so they can't be retaliation if he did not apply for and was rejected and he hasn't been able to show you have the qualifications either so either this bona fide secure seniority system was nat followed or that it and especially that it was not pollard because of discrimination or that there was retaliation and we asked the court to uphold judge pirro those decisions in favor of janet logistics all right thank you very much thank you anything further seniority system which is a do you have any records is a certain thing in this record about previous layoffs says in this workplace have layoffs ever proceeded on any basis other than your seniority but i'm not saying that this is ambiguous in this situation because the person for management scott schneider admitted that in order to be in this position you had to have the qualifications and three of these individuals did let's assume for example that there's a group of bar union in the emergency room physicians and that they were subject  type of language as in this case and a layoff was coming and they laid off the least senior african american emergency room physician who had credentials to the sky and was board certified and they required an illinois license and board certification and you had some older white doctors who didn't keep up on their continuing education and didn't have board certification and