and i would respectfully request five minutes for rebuttal time when the problem your honors this is a clear case of religious discrimination under both title seven and the n j lad there are three specific issues before this  the prime official case and pretexts are inextricably intertwined you are arguing that what happened on the day after the person was hired creates the inference that he was discriminated against primarily because of but there are also is balanced against that that there was a background check that needed to be done he was told it needed to be done and it turned out that he had a prior crime which was that was was a felony it was a felony yes and he was ordered also to pay restitution of what one thousand dollars correct and so they came in and they said to him the something's come up on your background check and therefore  can't have you here and then your argument then becomes but there are three other people who are there who have had criminal records why were they allowed to stay and he and he is not as is that it that's part of the argument you could i take you back to what you just said before the question because i think all of this is of a piece by you we're starting to say that the prime of facie case and the the pretext intensive analysis coming farther downstream when the burden shifts the burden of production shifts right track so you you are then focusing as on the qualification pronk of the prime facie and the evidence you have to suggest that others who had the same difficulty you would suggest in their background as mr sanders were higher retained he was not my position that's correct your honor my position is that the facts cannot be separated when you analyze the objective qualifications or the pretext section the district court impermissibly wade evans indeed credibility determinations about how this employer ought to run a debt collection business he indicated that it raises serious concerns to have someone with a  disclosed during the interview with h r for receipt of stolen property and so the records out whether whether or not that's a felony they only have to view till these they only know about the theft of utilities at least in the record th example of shoplifting there is what he discovered and what the record shows is that it was an eight hundred thousand dollars retail theft involving the jewelry business right he discovered the basic facts surrounding  qualms about theft that doesn't concern him it was really his issue that my client did not pay restitution what i submit to this court is that a jury must first conclude that even running a criminal background check is a criterion for hire for debt collectors because the evidence in the record suggests that he was not regularly running criminal background checks for all of his employees and here why i suggested as he's using it to vet candidates who are members of protected classes in that he didn't run the check this report relied on the application for employment in support of that which doesn't say anything about a criminal background check doesn't matter i mean i think it's about whatever's related a background check is i assume it would be to see if you has a record but it's superfluous language just because they put in the offer letter that your employment is conditional the successful criminal background check doesn't mean that they actually run them and in fact they weren't routinely running them when you clearly indicated that the background checks with a criminal background check were discretionary right it said we may based on what i asked the question if she were actually not there or not isn't that what the records show that they're discretionary i know you're saying doesn't the record demonstrate that the employer you the point here is that most employers probably with this kind of record would not hire someone regardless of religion your point is your best argument has to be that there was a hit or miss policy or non policy of doing background checks and then when you looked at the other people that were you have three other three comparatives and that they're hired and stayed on despite the fact that that was no that they had some type of criminal record the question is here is it so significant that doesn't make any difference because you said it was a felony and i guess maybe the key point would be restitution if the felony should be discounted because initially they did not know that it was a felony and when they answered the complaint and we indicated that correct they didn't know whether it was when and when they answer the complaint and we indicated he was fired for criminal charges or criminal conviction they said tonight as stated he was terminated for his felony conviction which can't even be accurate because they didn't know that it was  sued then sworn into rocketry they said he was terminated for including but not limited to his criminal record including but not living his failure to make restitution the david a glimmer of who was a supervisor in on the decision to terminate that our real issue was set and had i known that the wrong wilson had been convicted of a theft crime i would not have recommended him for hire he would have been terminated from his employment so if there is no stated policy procedure then there is no objective criterion to measure his actions and it should be analyzed in the pretext section and determining what is more severe or less severe is within the province of a fact finder not for us to determine how important operate his business since he has no consistency in somewhat in flux as the record shows because a new hiring manager or h r manager had just come on board the policy was not in writing no no sir but the age you'd be in a much stronger position here would you not if your client had any standard policy that declares that we will not hire anyone with a felony perhaps but that was not the policy of the employer the policy  at first he didn't even know what retail theft was which caused him to dig deeper into this background who you're referring whose testimony referring to  at first he was not sure and therefore he dug deeper which is clearly within the province of an employer of particularly in the debt collection industry and in particular mr potter his clients are banks deeper since well because you're citing the consumer financial protection bureau groet yes although not exclusively that you will say because that's that wasn't even in play at the time of this incident clients and bank clients is there anything in the record about standards of this bank on anything at all what's what's in the record is that debt collectors collect debts from vulnerable consumers whose private financial data and so story numbers are excess so i take it your answer is no no i think that does is that was there's a lack of yes and no well it is sat the standard is set by the banks banks are subject to a ten year there anything in the record about yes we cite to a federal law that prohibits banks from employing anybody with a felony dollars when mr parker did not know at the time he made the decision that ten thousand dollars is a dividing line under pennsylvania law between misdemeanor and felony conviction for m the difference of whether it was ten thousand one dollars and one thousand nine hundred ninety nine dollars is immaterial we have a retail theft conviction combined with a failure to pay court ordered restitution qualitatively different than the three persons that mr p not qualified does not get to the urban shifting section of the law where there are any other employees aside from saunders that were not hired on account of a criminal background and there's a very evidence t i mean that's that's the problem the question there is even if they had a policy are they ignoring it except for this particular person and the real question is does this get to a jury and it is you're in a tough position when you say when you have three people especially with wilson's record that involved in effect an honesty and you have him kept on and this person kept away and it may be maybe and maybe not that it was because apotheker was taken quote taken aback close quote by the religious garb that was  six that would be the only thing that would stop you from working a particular kind of paper my point being it's an undisputed material fact that he was not qualified i don't see how he overcomes that element of the prime fishing  d a minor offenses or case by case and this goes to my question my answer the judge a case by case determination is a policy and entirely permissible in fact encouraged by the e e o c the fact that it's  verbal the conway court in the eighth circuit dealt with in two thousand and case by case determination is a pos absolutely and the practice indorsed encouraged by the o c subsequently in it sounds like wal mart versus boots well individualized determinations have been approved in various contexts obviously under the americans with disabilities act the only thing an employer does is engage in a case by case qualified prong really is in a quine with the later downstream analysis with respect to the reasons that your client comes forward with the discharge mr sanders discontinue his one and we've said many times what an easy initially upon determines doesn't that require a conclusion that the prime of facie case showing has been made and that you then must go to the next step in the burden ship the process where the you may still win you just you just have to reach that stage by a determination that in the first instance the prime of a c c judge smith i will agree that there is no evidence in the record to establish a pretext with regard to the proffer justification in the next phase of the analysis i agree to that but my point remains we do not reach that level because the employer is free and the supreme court has endorsed on several occasions individualized assessments in this instance to determine the qualification of someone and therefore making it a prime fish case and for example justice o'connor authored an  opinion in two thousand and three in the form of action context a case in which she wrote an opinion holding that an individual isis sesson and survives the strictest scrutiny under an analysis affirmative action plan so here we have a much lower standard not strict scrutiny so the employer ought to be able to engage in that case by case analysis it's indorsed by the year of see it's not used for any abuse of matter the supreme court in two thousand and eleven in the nasa case said that an employer is perfectly within its rights to determine who's a reliable law abiding that much and that's just that's assuming for the moment that you're at least partially correct you have the right or you least have the practice of letting some people in and not letting others in some for the moment there was also an aspect appeals being asked to sort something out that normally is a fact issue for a jury to deal with the facts you hypothesize don't exist in this case to the contrary mr apotheker is quoted as saying in his  position it's a matter of record is there anything we can do to provide an accommodation for the then applicant mr saunders so under your hypothetical sure if an employer a decision  maker makes such comments and yes the matter should go to a jury but that's a set of facts here i also would like in my remaining time to make another point well i have just before you do that i mean you said he wasn't qualified correct but if he is not qualified how is mr wilson qualified because the criminal offenses that mr wilson was convicted of did not rise to the level in the employer's judgment of above recidivism which is really what we're talking about when an employer undertakes an analysis of someone's criminal background the employer is saying this person is not an above average risk to  invade consumers protected confidential information this ploy this this applicant is an above average risk and apotheker made a determination that the failure to pay restitution was a red flag the argument you just made to me may be a very good argument but would not be a isn't the proper venue for a jury no because the employer in the first instance still has the right to make judge smith is no evidence that the three comparatives were of any religious faith in order to make an inference of discrimination you have to show the appellant needed to show that the comparatives were not of the muslim faith there's no evidence in the record of what their faith is someone's appearance is not a basis to make a determination that this these folks are christian or buddhist or jewish or whatever average rest and by comparison with the others who none of whom failed to make in excess of ten thousand dollars in court ordered restitution none of them had a felony conviction for retail theft and  above average risk no not at all if you read the e e o c guidance which has been published subsequently to the district court's opinion you look at the severity of the criminal conviction the lapse of time you're trying to assess the likelihood that someone would act again criminally or possibly as a terminations apotheker determination is only subject to second guess and if there is evidence of pretexts it's not subject to second rebuttal i just briefly wanted to address something you asked me earlier and i hesitated to answer because you asked isn't it true that they may request a background check on page two seventy of the in that x the superfluous language about their conducting background checks isn't i'm a state the firm will conduct a background check when you are hired and you understand it's that or this is a condition of employment however the evidence shows that this was not the tradition that was followed in the firm and mr apothecary knowledge that only within the last two years which is vague the start running criminal background checks the evidence in the record also suggests that at the time that lynn andersen downs was hired which was about ten or so days before mr saunders started she was not she did was not running any criminal background checks despite the fact they were doing a lot of hiring she herself was not subject to a criminal background gave whether this was a significant criminal record and they made a determination in their discretion but with good reason that this disqualified mr saunders from being a debt collector you then have to come back in the third problem and so that that was a pretext for really what they really did was they got rid of him because he was muslim primarily because he was muslim and in a particular type of attire the third circuit has shifting and conflicting why is it anything other than sheer speculation yuri is being asked to engage with respect to what m about the background investigations results specifically the prior record well this is not a direct evidence case you're not going to find any statements of his internal thoughts on this one to toronto where of that so i so which w circumstance but right but it means a discrimination if the parent facia case is a low hurdle in the inference of discrimination is deemed to be met here when you get to the third prong isn't just an inference you really have to give a good reason as to why it would be quite possible that this person was discriminated against because of his his his religion but the pla and based on the fact that there are three other individuals whose religions are unknown and they're not at least in a pop eater's mind part of the protected class which i would like to address because the way the police frame the argument is that employers should have an interview with a woman who's visibly pregnant is beyond the belief that mr saunders have that he was discriminated against or could have been discriminated against because of the religion what other evidence is there in the record that might tend to