and goings on admissions that significant this varies existed between the treatment of men and women who are expert and whose testimony was admitted by the trial court found a deviation of over two across the board and relied upon a disparate impact theory regarding boeing's compensation scheme that apparently allows too much  treatment the focus i think i thought seemed to be the spirit in well the focus was on both i mean the case but i mean what i want to know and what i want for purposes of determining whether or not a case should proceed as a class action it's important to understand with provisions and ram he's designed to figure out how do you double check and monitor to make sure that if you're going to have a complete discretionary standard that there's some accountability and you asked me what the policy was again if you look at the teamsters case and th problem and trying to fix it even though they're not doing it perfectly isn't that demonstrating the intent to try not to have disparate treatment or actually we're going to argue the merits of documents talk about let's not let people know what we found let's make sure that we don't pay the full amount because we have the exposure here so they go ahead and raise the salaries of honeys anything that so perhaps people don't notice as much to me that's the worst kind of  concerned the trial court was that you may have these defined plants here in southern california but you have a wide variety of job classifications well that i think the courts have said the company itself when it started in the documents i refer to we certain number of defining clients who came to you with a concern retained you had an ask you to seek redress like resume that's right and you look at the situation and concluded that maybe there's more out there and so you want to proceed by way of  class action and i'm just curious why you other than those who specifically come for why do you presume that there are others who are concerned or seek redress that's not how this case aroused it's a good question but it's an interesting factual backdrop that one of the judges touched on nationwide gender case and broke it up into a kansas case the st louis case and the california case i had the benefit of the evidence that showed it was not just limited to a couple female employees in california kansas and therefore when i saw my name's neal and i'm here on behalf of the police i have to say after i read the briefs after the briefing was completed how exciting it would be to and be involved in a case that would resolve novel questions of constitutional due really relates to the authority of a district judge to deal with a record that's form and the scope of discretion the scope of authority that the judge has the question is not we believe exclusively whether the judge could have as such the case and it seems to me that here it had he certified the class here he'd be interviewed be in a tough situation well you know i think that iran has already pointed out one of the fundamental distinctions or maybe i should say similarities between the two cases because i think both stating and grows our standards of discretion or standards of authority cases the ninth circuit panel instanced were very troubled by the ambition scope of the can't say that the district judge abused his discretion now also pointing out one hundred mental distinction between the two cases as your honor pointed out in this case we have a grand total of eight declarations submitted detailed documentary and testimonial evidence from two hundred of them and the court said those individuals were drawn from such a broad cross section we don't believe the district abused his discretion issues are particularly important and that they bear particular scrutiny and i think that's the lesson that we draw from state but we also have to understand that the record that was before the county district court in stating what they stipulated record the parties had stipulated to the motion had agreed that the class should be certified and therefore when the court exercise due diligence to review the record in determine whether a clash would be sort of by the record the four corners of the record were bounded by what the parties put before them in this case the record was developed in the adversarial process and with the district judge still here was not wat employees one woman who wanted to go from the house from a teller position to the supervisors of tellers the one the eighty employees and the entire company there are hundreds of job classifications that issue compensation system that leaves the subjectivity out of the judgment as to whether the interiors of their aircraft are attractive or not now the most remarkable thing i believe that means out of councils argument was in the statement and i hope that i for purposes of a disparate impact case what's an outline is the approach one should there's no question there's no question there but that in watson they say that that subjectivity can be an improper employment practice grant you your honor that i wasn't disappointed when i saw the language but but let me let me simply say that i think that it would be very easy to divorce that language from the context of the case if one were to do that it would be an erro that under certain circumstances unbridled discretion and subjectivity can be a practiced but remember what happened in washington eighty employees in the total teller moved to supervisor of tellers no standards none no combination of written standards objective standards and subjective and no standards it was left up to the president of the bank to throughout the class period and across the entire class unfair the judge to limit us to twenty five pages but we had four hours in front of the judge and i read the transcript three times i got it on the plane yesterday and you will not find uniform fun generation raise management real time adverse impact analogy you will not see one of those elements mentioned in four hours of oral argument now the remarkable thing about this document is that when we were in the district court mr berman submitted a declaration that expressly said in this quote it on our breath the following relies on salary management not raise management raise management evil so are you going to make good that's what we up for specific practices that aren't in the brief and were never mentioned in four hours of argument that's just fundamentally unfair to a district judge that's what happened here now let's how do you what do you put your response to the statistical disparity because that i think i find them troubling if well i'm sure there's a you know deep down there i've only has an explanation but well there and there are a number of explanations but there are say when we get to trial i will win therefore there's a common issue and a common issue is whether we win and when we get to trial it's awfully circular let me address the your question of judge white as to how i address the statistics said two things first of all i was asked to assume commonality and secondly that analysis of the one that i just described masks the existence of a commonality because you homogenize as it compresses all of these disparate groups if one is going to determine whether in fact there is commonality of the analogy we used in our brief was whether you were going to determine in a block on which there was a public library whether a large libraries or large collections of books were common if you do an average of all of all together he divide by the number of of the houses or buildings on the block and on average there's a huge number of books in each one of those buildings but we know that you can't determine commonality that way you can't find out whether large book elections are common by having them all together and then doing an average which is what that analysis  order to decide whether those collections are common you need to look at each one discreetly first building second building now and then at the end of the day you can conclude whether large libraries are common on  in this case dr system looked for example the year two thousand two he looked at what he called job aggregation groups and actually it's a terminology that came out of a negotiated resolution with the r c c pig but he looked  cross section of crops he looked at them in each year and he looked at them in each location there were a hundred and twenty six cells if you will here a location aggregation group hundred twenty six cells two of them adverse to women in a statistically significant way three of them statistically significantly adverse to men if you take the entire period you add up all the cells and you look to see how significant in either direction adverse to me norman it's fourteen percent eighty six percent of those sales were not statistically significant in any direction if you're trying to determine commonality that's what you have to look at there is no common problem there may have been if you expect this methodology which we don't and you accept all of the other understanding is that his report which we don't there may have been a problem in the fourteen percent of the cells in commonality fail there's no question that that's true your honor and if i can point to an opinion that i think the us with this very knowledgeable indirectly it's the action against microsoft case coming out of the western district of washington in which the court said if there is a common practice for example if you have our acoustical engineers in our interior designers in our security people and they were subject to the same benefits policy for example the sex oriented  mortality tables that were issue in probe it would make any difference that these people do different jobs if it completely irrelevant but if the question was did you pay your interior designers correctly is there too much discretion in subjectivity in pain your interior designers or your security staff or the helpdesk people or the fluid dynamics ph d s or the people who work in the pop secret black box operations and the phantom work each one of those was unbridled good too subjective there's nothing that binds them together there's no common practice in order to show that there was too much discretion with respect to the interior designers you have to have testimony about the interior designers and if you're going to do that by each job title where is the efficiency where this book which is the animating purpose of all twenty three is that you supposed to have some overarching facts that are sufficiently supposed to be so unifying that the story of one is the story of all that's just not the case here and that's why in our view it would have been an abuse of discretion for the court to certify a class but my lord simply cannot believe that the district judge here abused his discretion when he said it unworkable diverse this is just too just for these people to too many different things in too many different places the statistics are all over the map  your subjectivity i'm looking i was my initial question to you was where where is the defined the practice and the practice we've defined in our brief was a single company wide policy that says do what you want to do that the discretion is being exercised properly that there's someone you can complain to this kind of an independent review board if you think you're not unfairly treated you can go complain to someone and there's an investigation process that starts there's all kind of want to just  you're going to do this i agree with that but if district court judge you like it or not i would make that a tsunami or write your employment office yes and district court judges make decisions like that as they do in school discrimination cases actually hear from expert testimony