morning members of the panel i'm birth cell phone i represent eric peoples and ten other minority firefighters in the city of detroit i would like to take four minutes for rebuttal and also fact with respect to whether race was a factor in the treatment of my clients in a layoff in two thousand and twelve and i believe the evidence shows that when you have eleven minority firefighters ten african americans  who were not scheduled to be laid off at all and then when their union acts to challenge the city's lists that have been created by the h r people responsible using the applicable rules that they are then laid off immediately if they're given their notices immediately before the layoff becomes effective and eleven white firefighters from an earlier cadet class have their layoffs canceled when you have that difference in treatment i think there's a tribal issue fact it doesn't depend upon statements of animists or anything else or whatever other proof you have so i think there was a triable issue of fact that was just missed secondly the use state that as both defendants equally well your honor of the only party that could lay anybody off is detroit but in a section of the statute that this court's never ruled on directly section two thousand need ash to see three it says it's an unlawful employment practice for a labor organization to cause an employer to discriminate on the basis of race and if they even have detroit says we didn't care or but race anybody was we know there were going to be someone else once they were caused to shift that layoff to be racially discriminatory the union i believe bears responsibility and bears responsibility under title seven not under the d f our standard which is what the court to a jury to decide how to parse responsibility i think the city cannot if they knew that they were doing things to save white firefighters and they acquiesced they acquiesced at a time where nobody bothered to go back and say well you know the rules been here for forty years that rule city seniority when it comes to lay off the third the city that at the outset proposed a list and then altered it a different list after the union became involved so are you saying that the city had a duty then to do something that it didn't do once the we'll implemented you grieve you grieve that we did it wrong instead the union says if you don't go our way we're going to go into court and tie up but you say for grant that's going to save hundreds of jobs and if we tie up the timing of the grant the city of detroit may lose it entirely so now the city of detroit was willing to abandon the rules and acquiesce into what the union wanted and instead of racial motivation the reason that  economic motivation well your honor in mind it certainly was economically motivated for the people that got their jobs saved for the people to relate off i would think that if the union president testified i know who was white i know who was black and who got laid off and who got saved i mean you don't have to have a motivation and i'm doing it because you're black but if you're conscious of the race of the individuals you're acting  the city is the only one race the argument about whether or not you satisfied all the technicalities of title so that's not a d f s fake argument it's not related to the union we have an example people started getting rights to sue we had five people that filed charges that were timely poll people's shack anderson not checked anderson mcleod and rivera the for african americans three of them got these knowledge one of settlements issued two months after late already filed in court mr people's got his right to sue against you have to fail on the charge against the union we believe that is a practical matter the commission's processing of those charges by sending the acknowledgements out it out after the case was filed was fairly clear to everybody they weren't processing these charges anymore they were done these people were in court we waited for the sta lifted and then proceed and so i do believe that there's valid race charges that were pit final against the city that are available for single file or and they can be used and i understand my time's up and  about how do you reconcile represent a claim under c three section seventy three or two thousand and two title seven regarding a getting a union to your union no inspiring the employer to discriminate against you what you would have i understand would be simply two separate actions under title seven title seven section two thousand a dish two a one prevents employers from discriminating so if the employer hasn't taken a certain action there will be an action under a one for the employer under c three provides an action against the union for its participation in that conduct so wouldn't be under the provisions regarding union discrimination so there are two separate avenues for relief as far as the imposition of the duty  the court recognized that the duty of fair representation was an aspect of labor law that was in existence may be difficult to establish for plaintiffs and in light of that congress enacted title seven and its protections against union discrimination which offer supplemental often overlapping but still distinct protections against discrimination looking at the case law and it's evolved over time there are in a large number of cases that address th issue but those cases where the courts have actually delved into the question of whether or not title seven standards are controlled by the first station have rejected that approach again the seventh circuit in its green decision explicitly repudiated the language from it earlier decision in both the bug is the is the touchstone decision that courts have routinely been applying mechanically without any analysis as to title seven claims involving a union where they simply announce the the requirements of a duty for visitation claim that is a violation of a the collective bargaining agreement essentially and that action by a barney member saying a statement that courts have applied the bug factors period and citing bug a bug was a again a seven circuit decision which involved a claim involving title seven and in both the court simply dropped the footnote and said to establish a title have the city taking one position on a contract the union initially taken another position in the contract the city has an undisputed fact control the layoffs and the demotions and transfers the point court made in its this court made its decision the union then changes this position after getting legal advice and then pursues the contractual claims on behalf of the plaintiffs in this case to the point where they look union seminar practice of doing what's right they declare they got it wrong i went back to the city they may fall policies and even though they spoke to plaintiffs who were surreptitiously taping them they they made full for rob doesn't apply in title seven cases against the union one it's not contractually driven if the union is trying to exclude a person who wants to be a union member not a contract dispute title seven applies than in its full glory but here this the pivot point here is the collective bargaining agreement and you cannot find a title seven violation unless you find that the union is doing something discriminatory with relationship to the the contract dispute and here the union did not do that evidence not significant enough have to response to your first well there was no evidence that was argument that was put in its brief the core pointed out it was presented no evidence secondly the court said it can't consider the case on a disparate impact because he did not he there were three hundred employment transactions here through employees with their transfer they were demoted or laid off and the court said it could not make an assessment of a desperate impact claim unless it had full of the full evidence of what happened so so this argument that you should abandon wells here it doesn't make sense i mean it's it here it's very simple you can't find a title seven violation unless you find a breach of the duty of fair representation and conversely if you find a a breach of the duty of fair representation if the union was did discriminate on basis of race or age or sex in the handling of the of a participant's grievance or members grievance then you will find a violation of title seven and that's what farmer says in eighty one this predates the seventh circuit but but your honor i would submit to you that under any standard under any standard in this case even if you buy into the plaintiffs and he sees arguments there is no evidence white boys other than that in these one is a tribute to a city official who has no role in whatever the union did in this matter and no efforts by the plaintiffs ever link that up in which that that was what drove the union on the damage sections we would say both on the analysis under due to a fair rap they're not entitled to these damages because they haven't demonstrated what the very high standard for compensatory damages or punitive damages under duty of fair rep and w got some it even if the analysis is done under title seven they have not demonstrated their entitlement to damages for compensatory damages a punitive damages you don't have evidence of outrageous misconduct via real vile behavior and i would i would parents as to the element of compensatory damages we played hell trying to get discovery of their compensatory damages which we couldn't get them to testify to we had to fight to get records they just didn't offer those so under either standard we think that matter they that it should have been dismissed those problems claim should be dismissed at the last but i want to speak to your honor is our cross claim and i do that with some trepidation i you know i'm a plaintiff's attorney and i'm a union attorney and we're big believer in title seven and but i think there are some cases which merit the court's attention now the trial court and now analyze this under rule eleven found the technical flaws in our her efforts to get the case dismissed and then and then frankly i think offered  matter of months the city is in bankruptcy and this litigation is started and they have presented utterly no evidence ardently no evidence of the scrim anation not actual discrimination not statistical discrimination not circumstantial evidence of discrimination they presented no evidence of their damages they lose their damage claim as a matter of law and they lose their damage claim as a matter of fact we begged them to get rid of those damage claims and we tried to pursue it and we had a fight with them about it but they kept them in the case so so we would say that that a union that has to litigate pay for litigation like this with its members money at a time when they are under attack for both  union resources to arbitrate in this matter getting an arbitrator getting a court record inviting plaintiffs to attend the hearing in which they did in which they were obviously between four and seven thousand dollars and then with a matter of weeks then to raise a race claim and getting checks into the hands of their members they did everything they did to create the i mean we all know the standard is that the union doesn't have to be infallible on its reading of its contracts what it did do is recognize that there was a split at the board allegations that the city decided there's no evidence showing that the city decided to change this sonority because of race the city initially used city seniority which was in the rules but however the union's contract at the time reference to rule from one nine hundred seventy seven always work grievance is not a simple matter either it's not as big as litigation but it sure isn't that simple and it is not cheap the city felt that there was enough of a dispute between the parties to choose one seniority over the other and it's not  completely normal for the city and the union to change depending on interpretations of the contract that's what the grievance procedure is for this however is not the grievance procedure we do have this  comet was attributed to there is about trying to you know there is a comedy play the white roger williams and it's they were trying to save the way boys now depending on which version of the the comic we're looking at the version that was presented to the district court was actually hearsay upon hearsay the version that was submitted to this court is a direct from one of the plaintiffs and says he heard it from roger williams roger williams involvement in this he was not a decision maker in this case roger williams was the individual assigned to say he was told use this type of seniority so he did the first less than he said they were told him they did the department decided to use departmental seniority after discussions with the union then he was told apply departmental seniority that's what he did he had there was two lists the first list was the cities and already the second list was a departmental seniority nowhere on either of those lists will you see the race of any of the plaintiffs or other employees of the city of detroit it was done soley based off of the seniority which seniority was to be used with respect to the exhaustion of remedies plaintiff in the district court made no arguments against the city's motion for summary when it came to that argument and the court noted it specifically that the only thing plaintiffs did was restate the issue and state that they disagreed now they want to argue against and say there was an additional plaintive or that the acknowledgment of settlements were in fact letters to sue but they are and we pr element are not an admission from the e e o c that they're no longer going to proceed with the case it's no it's not a right to sue letter what they are what they state is that the parties have come to terms they've received full back pay and they was not in the settlement that the grievance and it up leading to with respect to the statistical evidence i guess we call it we're in agreement with the idea of a there's just not enough there to support the claim they ignore the entire reduction in force which affect approximately three hundred people further their statistics are so narrow that it actually removes one of the plaintiffs one of the plaintiffs anthony macleod was not in fact laid off he was demoted now he also was laid off for seasonal reasons but he was not part of the initial reduction in force layoffs of the plaintiffs are relying on so their statistics don't even cover all the plaintiffs in this case and so they want to reduce the debt commission he was so the way the  layoffs work is there's a reduction based off of formerly held classes and so he had a class to bounce back to because he was formally a boat dock and so he bounced back to that now for seasonal reasons later in the year he got laid off but it was not as part of the ri really at this point i just have a curiosity question absolutely and the issue of departmental seniority versus citywide seniority i just a little surprised that there would be that many people that were in the fire department that had jobs somewhere else in the city so this is actually a byproduct of the last two classes at that time had come into the fire department the last two classes that had come into the fire department were actually transfer classes so they weren't open to everybody they were open to current city employees so the two the two last classes were open to current city employees so that's where that disparity came in when it came to the type of seniority thank you the evidence that the union in mid september finally asked its attorneys to interpret the proper layoff rules in our opinion is evidence of pretext it shows that they feigned to that they didn't know they were threatening the city of detroit we're going to bounce you from twenty million dollars to safer grounds unless you go with our rule they didn't bother to ask your lawyers what the right will was and i'm bound to make  they want full speed ahead and the city to the city merely saying oh well we'll go with your roll we think you're right no the city official zack it's in the record we've cited to this court said we cannot afford to lose this grant it's in one of the bulletins to the entire firm fire department we've got to work out a deal with the union well the union caused the deal the city agreed to the deal and i'm sorry i think when you have a group of minority fighter fighters who are affected who look at the list i mean everybody saw that matrix before the layoffs when they looked at the list they said i'm not affected i'm not impacted and then two days before the layoff goes into effect they start getting phone calls don't come to work for your next shift you're going to be laid off and there are there fire houses in the white firefighters who are in the two when they when they could look at this would have no problem finding that race was a factor and a factor in the treatment between these white firefighters and these minority firefighters i think on the charges i think there's sufficient information that even if for example mr poe's right to sue muslim in the file that i could observe he filed a timely charge even if we go back and say give me a copy of his right to sue they should be able to give it to us and if they don't know if we do that jurors any defect so i don't think that that's jurisdictional it's a procedural defect that can be taken care of they said to the farmer follow versus a very services back in the day was basically looked at as saying that yeah you could have a deal if our claim and you could have a title seven claim and i don't think your your title seven claim is only dependent upon if you can get outside the contract doesn't work that way the statute applies to all x y the union and they wouldn't have a clause in the statute that says if the union causes an employer to discriminate the union knew exactly who the people were that they were saving they knew exactly who the people were they were putting in harm's way and because they changed their mind after these people had been put back to work and pursued the grievance and got the city to pace back pay would never build figure out whether it's right it doesn't negate the claim against and i think there sufficient facts to be trying to especially if you apply the right framework in syria under two thousand us to see you through and i'm damages i just think the judge  representation by giving an opinion and then processing your ground is not an answer my question i'm sorry you're just saying that title seven case just forget about ever mentioning duty of fair representation because that's not a that enter a title seven case of this nature it should not limit the proof of the plaintiff in the title seven case to a violation of title seven which is what the union argued here and what the court below stall hide their true motivation we get that argument and i'm not stuck with must i prove direct evidence of racial bias and animists in order to get damages no you go with the