question a lot of focus on it i would like to discuss the broader issue that i believe affects all of this case and that is how the civil rights act of one nine hundred ninety one has affected both pleadings and su judgment standards before you do that mr greer i understand the argument but we have a case that really puts you in a bind  in terms of splitting out where mcdonnell douglas applies and where mcdonnell douglas doesn't apply and what do you do with decades with quaid yes this one  amendments did rot some change to title seven and they courts of appeals have struggled with what that change is looking first as to is only a direct evidence cases and the supreme court made that clear in desert valley which has cost it no that's not right it applies where there's mixed motives in any case circumstantial evidence or otherwise based discrimination there's no discussion in nasser that in cases where there's a mixed motive and of course mixed motive is never used in the statute it's those words do not appear in the statute at all  and then you have e c vs amber crombie and fish from the supreme court which was i think two terms ago again a status based discrimination case involving religious discrimination a woman who shows up for a job wearing a headscarf and she's not hard won one motive i'm not hiring her because she's got a headscarf and in that opinion a unanimous court with justice alito concurring specially but a unanimous court justice scalia writes that this is no longer a but for statute this is a motivating factor statute for all status based discrimination claims that statement is fairly clear that the amendments applies to all cases not just mixed mode of cases now we can look at what that even means to talk about a single motive or a mixed motive case there's been a great deal of discussion on this issue in  almost every title seven case and i've been doing this for forty five years this is the rare case where there's a single motive that yes i fired you because of your arrest and there's go some evidence that there was some unlawful motive and some articulated reason the only single motive cases out there are the ones where the employer does not step forward and articulate a legitimate reason that being the case the evidence is there's only one motive but as soon as there's sufficient evidence to articulate a legitimate reason you're faced with two motives and in many ways it's it's the standard that this court probably familiar with from the annal rb which is the right line line of cases dealing with labor relations and violations that where they actually talk about dual motives and in that context it's well this person engaged in union activity and then they were fired allegedly because they were disruptive those are dual mode of cases and they use the exact same burden shifting standard that then i can ninety one the right set as but again i just want to bring you back at that you're making the you're expanding on the argument you've made in your brief as to why you think your formulation of the current title seven standard is correct my question to you is a little bit more practical you've got wig standing there and the district court tried to apply it so if you're going to show error you need to show how the district court misapplied our precedent because a lot of the supreme court cases you've just talked about were decided before quigg right so you know you can't ask this panel to just quigg well i'm not asking the panel to reach out quick and what did the district board of the district court do wrong then splitting the things up that what you can look at is particularly with regard to the terminations discussion explanations one mr gill complained about or mr gill says i never complained about or says we are ad money problems testimony as there was no money problems so there's question about whether his statements false or not  one he gave multiple reasons to me that meant the burden of proof should have been shifted to the employer to prove that's why they terminated her and even if they prove that the plaintiff should win how do you how do you get national origin was a motivating factor that's an inference that can be drawn but it's an inference in favor of the defendant the move in which the court should not have drawn at summary judgment they can certainly argue that  two to the jury but they cannot rely upon inferences in their favor at summary judgment did you argue that the term with regard to the termination claim did you argue it under mcdonnell douglas or in there or under a mosaic theory or under something else we argue under both theories we argued that we can demonstrate managing the evidence and again mcdonnell douglas the way of discussing evidence so we demonstrated how you could prove discrimination under mcdonnell douglas because even under the motivating factor test you still have to prove that your national origin your race was a factor and some mcdonnell douglas can be useful for that so we did that which is why the court got to  pretext you're just saying to the court got pretext wrong where they got pretext wrong and also what they did from quit again and i believe this is a misreading of quid ian quick you had both the title seven in the hundred three claims and the motivating factor the mixed mode of discussion or title seven is one thing but then there's the question as to whether the individual board members should be held liable and so that in quick the i think the dismissal of some of those individuals was affirmed but reversed as the others because there was some indication they had an improper but there's no evidence of anyone discussing her race or a national origin and cites to the page under one thousand nine hundred three about intentional comments one that's a misapplication of quigg i don't think that and if it is proper it's inconsistent with reviews from the supreme court because that's basically showing pretext is not enough to show pretext you must so pretext plus direct evidence that my race was in the mix so it would be contrary to quick and contrary to reeves and contrary to cost because it would require direct evidence that once the court found a prime aphasia case question is even at that point the burden of proof should have shifted to the employer and under the summary judgment standard then they have the burden of proving there are no material facts in dispute not merely claiming the plaintiff can't demonstrate there are material facts and in disputes what evidence was there i'm sorry what evidence was third race or national origin had anything to do with who was just on the fact that she was hispanic yeah and the circumstantial evidence around her terminations the way she had been treated in terms of the discipline being disciplined unequally  declarations from other employees who recognized that mr burchfield seemed to treat the hispanic ploys differently than the white employees so talking about a mosaic i don't like using that term it case of the failure to promote elements is that she has to be qualified for the job is the record clear that she didn't have a bachelor's degree and that was a qualification for the job that mr melton did well mr mellon did only he did not have a bachelor's degree there are two promotions that occurred for that professional development trainer position then and so the first position when mr johnson filled it she was just finishing up her well working on her masters she did not have it but she had she had a master's she had well no she had a bachelor's she was working on her master as of the time this was done she'd never even completed a work on a master's but in that same my time is up in that case there were published qualifications she didn't have all of the qualifications and in fact testify there were five or four reasons why he picked her it was her enthusiasm her professionalism off fairly general reasons when you get to mr milton he then has completely different qualifications may please the court i think counsel the district court has to be affirmed because there's no evidence of discriminatory intent in this case and whether the court views misspent since claims there are a mixed motive for counsel there was a lot of discussion about standards there was not a lot of discussion about what specific facts in the record the record evidence showed the missing links race or national origin was the factor for any factor in any challenge employment decision and that's because that evidence is not in the record so what we're left with is mr benson subjective perceptions about the decision maker mr burchfield that he didn't like her that he didn't greet her as warmly when she came into the room that is not substantial evidence sufficient to defeat a motion for summary judgment and that is why the district court has to be affirmed as for the promotion claims as for the terminations claims and asked for the disciplinary action claims and i will address each of those in turn the can you can you talk a little bit about the district court's conclusion that she had not shown adverse action with the switch of her position at some point during your discussion correct so the district court had had to finding well made to findings there first of all that she had not pled that as a separate point the change  duties but secondly even if she had that's not a separate claim that's a subset of your claim you have to show adverse effect but that doesn't that's not the claim in of itself the claim is the switch from one position to the other an adverse effect is a part of that claim is it not iris make sure i understand your honor's question but but the way the claim was played was that that was a disciplinary action claim that she was treated less favorably because she had a change in duties right on the other employees following a suspension so when she when they came back when all three of those ladies came back correct and what the court held was that it changed it is not an adverse action which is consistent with this court's precedent that work assignments strike at the heart of an employer's business judgment expertise so unless you have a change in duties that comes with something such as a decrease in pay a different schedule you don't have an adverse action and  unless you have that you don't have an adverse action course if you have someone if you have someone who is working in an office in a so called white collar job and you tell that person you are now going to go work in one hundred degree temperature outside and in the field for eight to ten hours a day that's not a factor that courts consider and figuring out whether the switch was out of hers are not all that matters is whether now you're getting paid the same thing but if you're if you're in a white collar job and you're suddenly doing an entirely different job that would be a demotion but no no you know it's not the motion you're getting paid the same thing it's like we're keeping your you are still the c you're still getting paid one hundred thousand dollars but from now on he's going to be doing the fields well it wouldn't be if in this case as it was undisputed that that person didn't have a problem with it and voluntarily and acted as a different that's a different  act i'm interested in your position that if you keep the same title and you keep the same salary a switch of positions can never be adverse and i thought that's what the district court was saying and i'm not quite sure that's right well i think th saying that but there is there may be circumstances where that could happen but that this circuit has been very suspicious of that and under the facts of this case that's not what we had but what is she what did she go she went from working in the h r office to being on the kill floor correct you don't think that's a change a change that came with a bang phrase and a change to words not intermediate not immediately after she learned the job and that was her discussion with the hiring manager when she asked him for a raise he said if you will do this because job and she said she took it as being a new supervisory role that she would go out she would train on these jobs and then she could train the other employees on those jobs and that she was willing to do it and she was happy to do it it up to the jury but where's the evidence that that was discriminatory and that gets back to the initial question this case where is the evidence that the change in duties had anything to do with miss vincent being hispanic or puerto rican ancestry because what we don't have in this case is we don't have discriminatory comments we don't have statistical evidence and we don't have a complete promise facia case coupled with pretext on any of the claims and i would like to address that with  ok what reason did coke and give when they sent the response what explanation did the coke official provide that her job had been eliminated because she was not doing what she had been asked to do and  complained about her in that specific eve see response that wasn't that somebody had complained about her i don't believe it was that that the human reached its resources manager and had a conversation with the plant manager about supervisors coming to him and saying that she had disappeared for periods of time on the floor and and that they between the two of them decided the position was not needed and one of those people later testified through discovery th conversation never took place the way it was characterized actually he did testify that the conversation took place he testified that they had a conversation was characterized it didn't take place though he said he did not dispute that he just said he didn't remember the entire conversation and that is what it is you're he never he never testified that he didn't say that he wanted her gone he said he didn't recall saying that and then he said that he did not remember the entire conversation and he if you say you don't know what i mean you don't know if you say you don't recall making a statement isn't that evidence that you didn't make the statement not when you have testimony coupled with that that he that the person says that they don't recall the entire conversation and that he did not dispute that he didn't make that statement which is what his complete deposition testimony was he said i didn't i don't dispute making that statement i just don't remember the entire conversation and that would not be sufficient to create an issue of fact on that but again that gets into pretext the money about the money aspect of it there was an evidence that there wasn't really a monetary issue involved there wasn't contrary evidence that the reason for letting her go was because they were losing money that is that that gets back to the same discussion he dropped a pretty substantial footnote in her opinion saying miss vincent asked this court to apply motivating factor but then doesn't apply it herself instead she goes straight for mcdonnell douglas and argues only pretext as getting her to the jury and this court nor together toward is ever held that you get to a jury just by pretext evidence alone without first establishing a crime of provocation case or some other evidence that would give us a convincing mosaic that race was taken into account and that was not done  claims under maybe or a or where this court has said that makes motive does not apply to one thousand nine hundred one claims one of her arguments putting aside the summary judgment issues is that you do not need to plead make donald douglas prime aphasia case the twelve b sixty what do you say about that we agree that we think that's a correct characterization of the of this court's precedent but you don't think that was part of the district court decision for knocking out on the unspecified promotion actions and on the retaliation claim to move her case from possible over into the realm of possible so he referenced or set out the privation elements because but i think it's a supreme creator supreme court case that hasn't been overruled and i know that's a problem because you've got twamley in a ball which follow but you've got a case directly on point which says that you don't need to or anything close to it all you got to do is say i was discriminated against and you get past the twelve the six motion of the old collie worse is gibson standard well i would know that that this court has called standard but let me say this about about let's let's just say ok you know you have to say in your complaint is i was discriminated against that doesn't give us sufficient factual matter to know what the claims are or that they could actually be plausible with respect to the retaliation claim for example what she said in the complaint was after after i endured adverse action i complained and that was it and the district court gave her a chance to go back and replayed it and so she came back with an amended complaint and it said the same thing now that's not surprising because when she was deposed in that case she admitted she never complained anyone about discriminatory conduct she was asked that question directly did you ever complain to me when she said why i tried but the person i called never called me back so we didn't know we didn't have enough on the front end pleading stage but now we know for sure that there wasn't enough after discovery in the case it was the same thing with the promotion claims she just said that there were people outside of her protected class who fill jobs but there wasn't any information to complain about what the jobs were who made the decision whether she applied it was just these unspecified jobs that's due process issue for a defendant how can we even defend a case if we don't know what the claims are and that's and that it was the substance of the district court's holding is there almost a year you're asking almost for the sort of pleading that goes with fraud claims that's heightened pleading under rule nine the who what when where why how you don't necessarily get that even under eight ball and twamley for run of the mill civil claims well but has this court ever said that you can have a promotion claim by just saying i'm not a protected class and there was a she applied as your honor noted she did not meet the criteria for having about lawyers degree and the second time that there was not evidence in the record as to whether or not the position was posted it was not clear that it was not posted but the key take if it please the court on behalf of david burchfield we are asking the court to correct the record where both judge for and judge rothstein announced without any allegation in the complaint that mr burchfield was his individual capacity that allegation that he was acting in his individual capacity to deny any rights of mr vinson so the announcement by judge for an document twenty five on page fourteen to the effect that he was his individual capacity actually was a brilliant move to the case and the defendant never specifically responded to the individual capacity client because none was may what's how do you what's the difference between for from your client's perspective between an official capacity an individual capacity claim under ninety one his personal funds if he's sued an official capacity who is being sued the company without being named well is if he's an agent his actions so he can only he can only act as an agent in an employment context yes but he can be sued individually like a pending on what the allegations are certainly can and that's what we would expect if he's being sued individually that the playing of says so that we know for instance he was not personally served that is indication that i did not intend to sue him individually that he's been sued individually and judge roberts today and document ninety five it footnote picks it up and also says he's been sued individually and we haven't had a chance to defend that i haven't i haven't had a chance to look at the record in this case didn't did you move after judge fuller's initial order to correct that and tell him listen you've gotten this thing wrong he was never sued in an individual capacity and let's get rid of that mistake we did not ok we still believe continue and that doesn't new employees to learn their jobs translating doing h r work spending time in an h r office and she's moved to go down and begin getting chickens taking parts of chickens out of conveyor belts that's a significant change in her duties the district court ignored miss instance affidavit where she states that employees were coming up to her and saying are you being punished why are you down  here now the court also said she got a raise when she got a raise after she did the job three months so she's doing the job at the same rate of pay not getting paid what the people who are doing that job are getting paid did she like it and then she had much choice but to like it and whether or not she likes the change is not necessarily control and as to whether the changes  adverse there's a lot of things that could happen that could be an adverse action where an individual says but i may like it i'll do it it's work i never thought of wanting to do but i like it doesn't mean it's not adverse  also she did not request that job mr burchfield put her in that job this is after she came back was terminated along with the white employees they get called back during the period of time she shows up at work think she's thinking she's been terminated the only reason she even finds out she's still working there is that she shows up to gather her stuff the other two women are back working and mr burchfield gets a call that she's there and he says oh good i want to have to fire her well it's clear he was intending to fire her she said you're just some other different conditions because they have to check with mr l rod in another state as to whether to bring her back didn't do that as to white women she comes back ok she gets paid for that one day but it certainly put a great deal of stress on her and then right after that she gets a new job she does that job i think a jury could conclude when looking at the entire spectrum he put her in that job figuring she would hate it and wouldn't do it and she quit she didn't quit so they ended up terminated her so you have to look at all of those circumstances  on the mr burchfield issue and i say my time is up but the defendants did not mr burchill did not file a twelve before motion of twelve b five motion the first time this issue was ever raised i think was in their reply brief document one seventy eight one seventy nine where you think there's an allusion but you issues raised a reply brief i waived and then with regard to the promotion there is the district court concluded that one of her promotions she didn't state she didn't properly plead a case because she hadn't applied and that's where she had asked about it and been told all that's going to pay less than you're getting paid and indeed it turned out it paid more and a white person is hired for that job