morning to please the court my name is jeffrey finer i percent justin harder your understood this is the postal service case there are three threshold issues for the court and the st one is whether mr justin harder as a postal service employee was covered by articles fifteen and sixteen of the collective bargaining agreement these are the due process articles where an employee must be given the reason for negative information put in their file is not quite what it says yes but what does it i don't think the article comes close to saying that i understand given notice if he's terminated for cause terminated for class and that's where i kind of stub my toe right from the very beginning because there's no real sign here that he was terminated for cause the paperwork you point to is the paperwork that results from termination but he was terminated because it was december twenty six i mean that's the gist i get from well in the case that you've presented so i understand how is that establishing termination for cause the united states postal thirty's form fifty says he failed probation and when challenged at the e o they came up with three items that he was late that he wandered and that he had to remove him from the vicinity of the female  which was never given to my client and contested and that was the basis under the form fifty submitted by the postal service for his terminations for cause as failing probation so if i understand the government's  in for violation of that it be a fair representation this is that properly before us that argument the postal service argument it's odd that that was raised in their response brief and had not been raised below however they correctly point out this court can affirm on any basis although i must say the basis they are now relying on having abandoned the other arguments it was never developed below and so the court is somewhat at a disadvantage united states offered to have it returned for further development but let me tell you i think you can decide it as is here's why the union agreement from my client as a p s c gave him partial rights fifteen and sixteen but they said you do not have grievance rights until you've either worked for ninety days or you've been employed for one hundred and twenty my client and many people who are dismissed right after christmas haven't got the ninety days in no dispute i don't have a problem with that he had no grievance rights but because he had no grievance rights how would i possibly bring under rule eleven a hybrid case i would say that the union failed to what the union didn't fail to do anything he had no grievance rights he's covered by due process rights one thousand five hundred and sixteen dollars but he's not covered by any grievance rights now this is a rare event that it comes to court although i think it may happen frequently down below but is there any case that  has a similar factual situation like this i have searched your honor i have failed there may be something this is my this my burden to bring you the cases i cannot find a single case where anyone has perceived that with due process rights to your job notice opportunity to be heard but no grievance rights that you have to bring the union in they would have been dismissed right out of the out of the box and by the way it's not my habit to bring in non essential parties it's just it would clutter the courts i think would be a terrible policy to insist that people represented by the labor agreements with whom there is no dispute with the union must somehow hybridise bring the union and have them sit there make their motion to dismiss and they're out there they didn't do nothing congress issue was briefed for the district court i'm so sorry nothing on this issue was briefed not of the district court i had researched this i determined it was not necessary for a hybrid case i expected the argument it never arrived i never threw it in the hopper however this case need not be returned to the lower court there is sufficient evidence st on the contract which was thrown out on the twelve b six i raised my judge they're throwing in documents not in the pleadings this is a summary judgment postal service said no it's not ok fine we went for it i was thrown out on a twelve b six with the pleadings explicitly said my client has due process rights for his terminations he had no opportunity to exercise them through a union he's bringing this lawsuit because there are sham documents in this record good just going back to what was before that district court the district court referenced the the c p a the collective bargaining agreement i think the government had had provided a cite to it and then the district court held at the collective bargaining agreement was incorporated  did could not review it but i've reviewed the ancillary documents the supplemental documents that the union and the postal service produce for its members to understand including a memorandum of understanding which is an official document and if you read the contract what the government did was in a procrustean way they went to the st page and then there was a long blockquote and then they cut it off like with a paper cutter that document goes on for another fifteen articles all of which referred to p s e s the district court with respect could not have looked at that because it's clear that article fifteen references p s e's article sixteen reference so do many more articles but the united states in error and i and i may have been a subordinate has no aspersions but the united states somehow chopped that contract off that article seven and said see they're not in their p s these are covered this case is over on it i must admit judge when i had two different versions of the form fifty when i had the contract cut off it made it between number seven and number eight i was at a loss what to do with this record now this is one of the worst records i've ever dealt with it is a mess but i can put it into very short capsules ation my client was removed without notice encouraged to reapply sent home they said well he didn't call well turns out they have or told him to call they have told him to apply again he applies again turned away and when you look over that the field and turn over each stone they failed there are four comparatives three of which are in the record i have a th that's in the record but not in my brief therefore compared hers of nate of non native males who were terminated one for cause just like my client the same cohort rehired within weeks my client was not the only explanation was he was late he didn't return calls all of which was challenged and where at summary chuch meant my client's assertions that are properly before the court were not to be cast away and they were well what what evidence could your client provide as to why he was not rehired well he didn't provide any because so so why is the fact that it were in summary judgment and he had a different point of view meaning because he pointed out he had never received any write ups he received no negative matters in his personnel file which regulations require even if the statute does not and he was not rehired this is temptation isn't the problem your honour's let me be clear on the twenty six they let him go  everybody go on the twenty six all the pieces are let go which i've got to say is why i'm kind of baffled by the breach of contract claim but that's we're number two now so because when three times back to be rehired he did it twice but he comes back they now say disqualifying factors for any of their rehires that's not true that's at the c r two dollars to two dollars where at the e o level the postal service said there were no rehires that had problems here the  and seventy eight the plant manager quote wanted him back he was terminated for cause poor work failed probation just like my client but he is not a native and the plant what david stated was that there were three native americans at the plant and none of them were these this gentleman but i agree there is no explicit statement that this gentleman was white that is correct and then brown that record is  we're at summary judgment for that claim that's not a twelve b six that was a rule fifty six and his affidavit went through in that record and cited to the records cited to the rosters that we obtained we were able and to affirm the dismissal of the title seven claims on a summary judgment motion and let me start with the the breach of contract claim procedurally this is a little unusual i know the question has already come up as to whether this was before the court that the main issue we raised now which is that mr harder was required to allege that the unit breaches duty of fair representation just start with you don't now argue that the  argument we made i am unaware that any document was truncated since i was going to put the motion together i don't know what that discussion is all about a full section that showed the applica because i thought your representation to the district court was only two pages was was applicable and showed that only a certain number of articles applied to p s e's that is what we submitted because that was the complete section discussed which articles apply to p c s so you continue to take the position that article fifteen and sixteen are not applicable to a p s e is at is a correct that seems contrary to the language of the c p a they are article fifteen is not applicable to this p s a who were close in ninety days and the article is explicit but there's nothing in the article that says you have to work more than ninety days to get a notice of charges against you we believe every this let me find the page that says in the case of free mobile for cause within the germ of an appointment a p s will be entitle to advance written notice of the charges against him her in accordance with the provisions of article sixteen of the national agreement i think is the language of by opposing counsel and if you're looking at pitch to ninety of them memorandum of understanding that paragraph need to be taken in context with the paragraph below and above doesn't reference grievance rights does it not because the quote you're looking at which i believe is out of place this brief doesn't contain the entire section of that article fifteen where now this is a quote from article and it's in section three b other provisions article fifteen but the article three is the the notice provision is in the same section as the grievance p if you don't have the ability to grieve then our position was you were done you can't grieve the failure to provide notice how does that if she ate the language it says you're entitled to notice you may have able to grieve look at the decide that the reference that judge you could have just read doesn't apply to this point of our position is that the article fifteen because you do not have this p s he did not have the ability to grieve he can't grieve a lack of notice so even if there was no notice so that he's not entitled to notice that's good that's our position he can't he couldn't grieve it yeah he's incompetent or he's brought it to court well he hasn't brought it to court properly and that's the position we took in o evony rights against the union there is not we don't believe there's a rule eleven violation here there is a string of cases that require even when the plaintiff believes that the grievance rights don't belong don't belong to him don't apply to him that he has to exhaust that remedy and at least try and i can do a bit but counsel so even if one assumes for the sake of argument that you were correct why shouldn't we send this back to the district court to if that is before the district court and the district court says that why shouldn't plaintiff be given the choice as to whether or not he'd want to a man to bring in the union well the biggest reason is because the statute of limitations on  amending the complaint has long passed dell castro the us supreme court case of del castro teaches that there's a six month statute of limitations that applies in this very case that's six months as long past the plaintiff actually did amend his complaint  decides and there wouldn't be any it's edge of limitations issue i guess i don't i don't think the government raised this argument about the duty of fair representation before the district court did it we did not so  it's remains an open issue or an open question as to whether that's actually required and the district court can make that determination if it's not required then of course there's no statute of limitations issue so we believe the supreme court has spoken on this hines versus anchor motor for it for twenty four us five hundred and fifty four really talks about using the procedure that's in the collective bargaining agreement republic steel versus maddox the supreme court  it said the plaintiff must at least attempt to exhaust exclusive agreements and arbitration procedures even if he doesn't believe that there they exist he has to do that and the problem is i say this this position seems so radical to me i hadn't bothered to check the propositions and i will check these cases but i also tell you if these cases don't support the proposition you're arguing for we're not going to appreciate it it's because it makes no sense to me to say if your position is he has no rights it isn't i can understand it is tension that says the fact that he may not think he he has a grievance right isn't determinative but that's not a question of whether he thinks something that might be wrong you're asserting and it seems perfectly consistent with everything i looked at that he has no rights against the union and so imposing a requirement that he sued the union as the price of admission to being able to sue the government is utterly illogical to if it was his belief that the grievance may apply or may not apply he was required to even if it's absolutely true that he had no rights against the union which is your representation not his so it's not a question of him being wrong maybe his belief may not be a defense of his wrong but if he has no rights against the union what possible logic of their being in making him so the union but that wasn't our position when the case started it was our position when we finally bought the which talks about the plaintiff belief he is still required to try to exhaust that remedy by have any case that doesn't turn on the plain disbelief but in fact a legal conclusion that there are no rights against the union that still requires a lawsuit against the union that's what i'm looking for i can't say specifically if that's ok i have that isn't that what we have here it is possible that's what we have here wasn't your representation that there are no grievance rights yes is the other rights you could have against the union cause without notice does he have any claim against the  union i don't know i think that would have to work its way through the process but he didn't bring that process and the problem is you can remain that but the statue of limitations has run so long ago that it's a futile act to bring that though it would be a few i'm sorry  it would be a futile act potentially there were if there was no no equitable reason to disregard the statute war if we found it would be a futile act if we  found that it wasn't necessary to or the district court found that but i mean with all these new issues it's just hard for me to understand why given that the district court made this decision obviously without having read the entirety of article fifteen why we should leave these issues to the district court which are i could just point to more cases which we did not raise in our briefing at all we discover these after we did the briefing that in a situation where an employee hasn't worked the ninety days and so does not have grievance rights under a collective bargaining agreement that district court lacks jurisdiction to even entertain a breach of contract claim i'll give you those citations young versus anthony's fish grotto eight  that let me just move on to the can i have a few minutes left the title seven claims of race and gender discrimination as we pointed out a summary judgment we brought challenge among other things the st thing we challenge was the prime official case of discrimination and we showed definitively that plaintiff had not proven a crime official case either through direct evidence or in direct evidence when you look at the plaintiff's response to the summary judgment motion it does not address the prime facia case with the exception of a brief discussion of similarly situated employees but at that point that was not developed by the plaintiff in the proper method they had a jumble of employees they threw together and said well see i worked with these guys and now they have permanent jobson i don't but the district court pointed out that plaintiff did not respond to the prime official case argument and when that happens under the mcdonnell douglas framework the burden defendant to show a legitimate cause for the personal action now we went ahead and showed the legitimate cause the firing in two thousand and fourteen was based on performance mr chest pain just didn't t supervisor didn't think he was a good employee and let him go along with i think that particular day eight other employees when mr harder applied in two hundred and one thousand four hundred and fifteen for the st position it appears and this is the best we could find that his application got lost he didn't get a call or a quest for an interview and so that just fell through the cracks there's no discriminatory intent there the nd job position too as described in plaintiff's complaint the interviewer learned from mr har it worked for postal in two thousand and fourteen went back and talk to the supervisor in the supervisor said yeah we had problems with him we don't want to hire people back that we did that aren't the best we can get and so they didn't hire him ultimately what you're going to find is besides not responding to case is there was never any evidence of discriminatory intent provided by the plaintiffs they went off on this form fifty saying there's a fraudulent or a sham form fifty there are two versions one was kept at the local office but neither of those shows any discriminatory intent and you have to at least to get into a primary case have to show some discriminatory intent and there was none sho they are not similarly situated they had different jobs which means they had different supervisors which means some of them were not fired because like he was so they you can't compare those you can't just pull names out and say well these people had some problems and now they were hired and so they were similarly situated the other problem that happened in the district court is and this was in our argument on the prime official cases the plaintiffs never came forward with evidence of the race of any similarly situated employee it just wasn't in the record below and with regard to gender you'll see we described in there of the two vacancies they ran to fill these approximately forty positions there were more males hired than females i'm not sure how you get  could you ask me a question i wasn't able to answer previously regarding position want it matters to us because for damages it is the earlier position and time that he was denied and this is the crux of our claim not that he was fired after christmas but he was never rehired and for reasons we think were improper here's what happened if the summary judgement my client said i never got a call i called three times they never called back in the record the postal service admits it e c r one hundred and ninety six in paragraphs thirty and thirty two they finally admit they never called him for the appointment so he at summary judgment it he gets his version he says he called dillon explained why doesn't doesn't point any didn't have prima facie i'll represent one of the case we cited we easily made a prima facie case he's a member of a minority group majority members in taishan as compared to the district court i'm not sure what i'm supposed to take your word for what judge was wrong because we have the four compared and i just heard counsel say that none of them are similar situated they weren't behavior issues mr barry was fired failed probation the same phrase poor work same phrase he said the also the government said they were hired for different jobs they were hired for different jobs but the key point is my client was disqualified from applying he wasn't allowed any jobs the white guy forgive me was hired into a senior position and that's discriminatory behavior my guy couldn't even get the entry level position they started at the same level they were