morning counsel we want to we recognize you're coming all the way from washington d c is pro bono counsel so the panel of the court thank you for your involvement in this case so please proceed and if you pan they cheered for the record on the morning and may please the court my this court to reverse the district court's entry of summary judgment against miss jazzy because the record the trial record largely compiled by the defendants was littered with disputed material facts and when viewed in the light most favorable to her would the county says she tested positive for marijuana wow on the job that's not a facially valid non protection you can show later that it was a pretext for discrimination at step three but i'm focusing principle you're saying that if the case in step one is so strong that it doesn't matter what the business in those cases argument and responses you're saying doesn't matter at all the me over i'm just trying to figure out what what's so strong here that we don't have to figure out whether or not there now we don't have to go to step three your honor what's what's very strong in step one is part of the prima facia case is that we have shifting rationales over a period of time by the defendants as to why they terminated her now they they have consistent they have to some extent consistently said that they terminated her because of marijuana because of the drug test the result that was consistent that was once the however that is that that is far too superficial of a way to look at it especially in light of the case law so with respect to that and so i have two points to make on that with respect to the case law we have we have at least pain versus norw at one thirteen f that three d ten eighty and which the employer had consistently to some extent said that the plaintiff was fired as a result of insubordination however when you peel back that particular   out you meet the first problem but the second prong the county says we don't allow people to do drugs on the job your client was it was claimed she did marijuana on the job she said  well these other people that treated them differently than and turns out under the record they didn't treat them differently of the people were substantially similar so under the circumstances how you seem to be suggesting we just ignore the businesses response because she's a native american but that's not the case law is it no you're out of the i we're not asking the court to ignore the proffered reason or simply were simply trying to argue that i substantively the same not once in those letters do they identify the basis for her terminations that they are identifying and proffering today as a reason as to why they're terminating her specifically what they're proffering today is that she was in a public safety position now what do those letters say those letters say you're being terminated because you tested positive for marijuana on the job do they not correctly and isn't that exactly the reason they're giving for terminating or you're out of there it was the letter say a little bit more than just that they say we're terminating their terminating hair for the drug use and by the way here's an exhaustive and specific identification of all of the relevant see if we can agree on one thing do you agree that there are factual justification for terminating her was consistent throughout which is to say you tested positive on the job for marijuana use they've made yes your honor they've proffered to when in fact she did that but we're not disputing that that your client originally said no i didn't put must be somebody else's test that i never did but later on admitted that she did so there they may have they may have cited different parts of their regulations throughout in support of their position but their position throughout was perfectly consistent were firing you because you tested positive for marijuana use on the job correct correct your honor if you are going that there that the legal rationale for doing so must be consistent throughout you're on a date they know when is the speeding that the dep't least we're not disputing that she could be terminated because she tested positive for drug use but the policies have to be of of how they go about terminating her have to be applied in a nondiscriminatory manner ok so let's get to step three which is what i was trying to get you to begin and what evidence do you have the policies were applied against her in a way that they were against native americans i've not heard of americans of story during which she's got to show that that i was discriminated against because of my race and therefore similarly situated non native americans were fired for the same offense i don't see any of that evidence in the record your honor there's there's no there's nothing in the record for that to show that similarly situated personnel were treated in some sort a different way or  only evidence of straight comments you know what i mean yes and yes supervisors or other people in the chain of command saying we really don't like many americans or i particularly don't like  the the instances and the time leading up to her terminations in which she faced discriminatory racially offensive behavior but what there is by counsel weren't those comments made by people who were not her supervisors your honor it says that they were her allegation and that verified and verified interac atory response was that they were they were there were comments that were made you know racially offensive vile words that were used agreed but these were not her supervisors these were random comments by people count as big place that a lot of employees we have some people who are not very they said bad things yet and apparently they did that here for allegation is correct but under the case law that in the question whether it was her supervisor people who had control over her job and her performance if someone like that made the comment it might make a difference but is there any allegation that a supervisor made such comments your honor your honor the record that these comments by coworkers and i take it that's what it was career was yes percolated up to the supervisory a level in the evidence of that your honor i would refer back to the same to verify according to the record that's a reasonable inference to be drawn from because her allegation is that the when those words when i was derogatory when that derogatory term was used supervisor stood by and second no corrective action  if it's certainly she could say when those remarks were made mr le kosky was there in heard you say we don't have to guess i mean she was present when they were made correct correct so he could say mr  affidavit or declaration and she can say this is what happened and so on this record do we have any evidence that the mean mr le kosky either took part or heard these remarks she may have a wonderful hostile work your honor i would dispute that she didn't say anything in opposition to the feeling that something but i mean if you she really did not confront with contrary evidence much of what was said by the county ditching well your honor she was proceeding pro se at the time that you're sent us there and and so she's not required to comply necessarily with the niceties of local practice not that i agree but she still needs to confront the evidence that was used the words if they say a and she says well i statement of controverted facts but nevertheless a statement of controversial tax and you'll save the rest your time ok let's hear from the county there the court didn't really focus on it but i would like to speak very briefly on the waiver issues raised in the briefing the majority if not all of the issues raised as a court as briefly touched on were not raised in response the summary judgment motions i  was preparing per se at the time i would say isn't this a pretty good case in which to move to the merits rather than worry about technicalities given that she was prospecting it's certainly within this court's discretion which the counties prejudiced in any way by her f issues the one we certainly we did your honor but there are the issues being raised on appeal are being raised for the first time a case so why are they wrong i would just like for just for the record very briefly to correct something that was said you know certainly with the merits honor district court local rule eighty three point three c very clearly says that anybody appearing before the district court must comply with the rules including the rules and summary judgment regarding she was appearing proceed may we safely assume that english is not her primary language yes you may your honor i'll move to the merits let's go to the matter sure certainly this court has identified the reason given for plaintiff's germination has been consistent both factually and i would submit legally throughout the proceedings it was because she tested positive for marijuana and that is the reason why they terminated her and the reason is important because when you operate the type of machinery that plaintiff operated for the public works department it is heavy machinery that poses a risk of serious death or harm to anybody on the roads here and you need to be alert you need to be full with full mental capacities when you when you operate this machinery let me let me make the argument that i thought your friend was going to make it maybe we prevented him from making which is that we seem to have a different policy for nonpublic safety workers right they're supposed to be counseled and correct there is a release a different set of guidelines yes and no the guidelines which are you just said it right there guidelines if you look at merrill five zero seven the very introductory provision of it section they specifically says that the drug and public safety worker quite frankly no because director latah undisputedly testified that he terminated every single public works department member who tested positive for drugs or alcohol while on duty so you know even those who did not deal with heavy machinery that everybody secretary janitor up through every machine every operator who use marijuana on the job from the evidence that i've seen on the record those who were terminated were those who are who owned commercial driver's licenses and operated the heavy machinery so then it does make a difference that you're a heavy machinery operator that's where the public safety concerns come in and it's undisputed that plaintiff was in this case something off the job that was different but on the job everybody was true the same think there were like eight or nine cock asians and there were some when i say that i can write and this as a yes so to be to be precise what happened was she was given a test while on the job and that tested positive that could have been the result of using marijuana before she came on duty correct there's no evidence that one way or another  her would be like this there's no evidence one way or the other the answer to this question is yes yes your honor been there and under the policy that makes no difference but the not arguing sure you know sometimes we ask a question and the precise correct answer helps you yes your honor she there is clearly she could have taken the drug before it before she came on to unsteady but when she tested to the gentleman who was found a couple hours later drunk was isn't there a good reason to believe that he was impaired on the job see the excuse here that was given is what we don't know whether he drank while he was on the job or not but you don't know whether missy has he smoked marijuana once were there when she was in the job or not you fired her for impairment so why isn't that other case  comparable case well there's no there's no way of proving in that other cases that gentleman was impaired on the job he may be impaired later on in the day but there's no way of proving that at the time he was there on the job two hours later he was impaired is that  retrograde analysis back in time to determine if that's case was any retrograde analysis done with respect to this gentleman it not to my knowledge your honor and for what it's worth to the if county of established from the fact that he had a blood alcohol level of some some level after two hours after after he left the job that it was more likely than not that he had been impaired honda job we do this in dui cases all the time somebody refuses a test and it turns out to be an hour and a half later than your county free speech went to court and they say i can tell from his test an hour and a half later that he was drunk an say i don't think that would be within their purview well it if it's correct we don't know if it's correct that he could have used to  while on the job and therefore would have been impaired on the job doesn't that chew away at the step three mcdonald i don't think so at all your honor they have to show that the reason we gave me that we gave for her same level of marijuana is found in his blood system or test and account he says we're not going to do anything because we can't prove that he did it on the job would that be sufficient to show that some non native was treated differently i don't think they are i think it's because mr la tosca was taking the position that if he could affirmatively prove almost all of these beyond a reasonable doubt that somebody was on the job under the influence then that's when he uses  textual no no when she says i was terminated because of who i am a navajo and she points to this guy who was found im but had gone home at one point in time was the county's burden to completely erase any possibility that he was similarly situated i'm just not aware of any an legal authority that would require the county to go out and do what when is it such a record and not to say that you said this person was similarly situated he was not because this is someone we couldn't prove that this happened on the job of the consumption of alcohol on the job yet you and well i would add it is paramount not to interrupt yet and yet you've told us that it's entirely possible given the state of the record that she use marijuana before she came to work yes rather what does that do about substantial similarity you know are you saying that it's not the county's burden to establish lack of similarity lack of pretext i think the county has given legitimate reasons for plaintiff's determination and plaintiff has not presented sufficient evidence to show that the reason given which was provided under sworn testimony sworn affidavits and was consistent throughout the entire terminations process whatsoever that the reason they gave was pretextual and that is what their burden is and they cannot do it through inference and must be specific and substantial so let's assume that they had an of a non native tested the same level of marijuana and was not fired that would be sufficient to create a factual issue of step three would it not if that non native american was tested while let's assume instead you have a non native who's tested and hour and a half after or two hours after leaving duty and has the same level of marijuana in the system and they don't fire that person essentially or on or would have thought your answer would have been yes but that's not our case it isn't our case ok i don't want hates hearing that response so so the answer my question is yes yes and the difference there for you think this is not sufficient because it would use alcohol and you can't really and because because you talk all right it's not for it's not simply because it's alcohol i don't want to sound like a broken record but it's because do that when they would have to prove some sort of future litigation it's that that's i think the court is it would be imposing a very high standard that would be almost unreasonable in the county if they had to do that for every person who tested positive at some point in order to survive honor i would just briefly touch on the one thousand eighty three issues with regard to mr latah ski you know i would say that on the record there wasn't any intent or purpose to discriminate under the case law and that the reason given was consistent was because he tested positive and that was the reason for termination of public safety concern i would submit the same with the due process rights that they claimed she was afforded every due process right there as she was given notice of of the positive test result she was given the opportunity to present evidence to contest it otherwise and in fact when she did she lied she she said falsely but she wasn't fired for law no she wasn't your honor but it factors into whether they could have considered alternative means one of those you see that's you say strict policy no excuses everybody gets fired now you're saying well maybe if she didn't lie which is i was just addressing their argument that they say we should have like other other employees should have been given the opportunity to do some sort of drug testing program or a drug mediation program but you're saying there was no such proof there was no such program and even if there was how could the county have known to administer such a program when she flat denied that she had a positive take your honor a couple points that i'd like to clarify first your honor there is no evidence in the record that similarly situated people were treated in the same way there's been a honing in on this you know on a few paragraphs  makeup that's evidence and your honor what that that's evidence that he terminated these that those eight or nine people in a particular way but there's no additional evidence that any of those folks were either public safety in public safety positions or you test positively when you're on the job you're out ok or who you are isn't that basically what he was saying your honor that that is what he's saying and that's a piece of circumstantial evidence that a factually direct testimonial evidence not circumstantial what's the evidence to the contrary you're honored correct that is it but it's a self serving testimony that has no underlying documentation that's ok we do that we send people to death row based on self serving  testimony by police officers that has no documentation it's a that's a good argument for the finder of fact but it's not a good argument in summary judgment the question is what contrary evidence do you have your honor i think there's no specific contrary evidence that that particular point but there's other pieces of circumstantial evidence in this case again the shifting rationales being provided by the defendants as to why they terminated or the answer what they're proffering now is the legitimate as a legitimate basis is something that was very straightforward that could have been said you know initially to when they terminated her in two thousand and thirteen but it wasn't until the motion for summary judgment almost two and a half years later your honor as i see that much sums up almost may finish almost two and a half years later that they finally came up with a reason as to why she was term it as the main reason as to why she was terminated and i would submit that there is and there's an inference to be drawn there by reasonable fact finder especially