primary issues has to do with the over time discrimination and what mr garman says is prior to late two thousand and twelve he built but like kris allen she had overtime on an equal basis there were three of them they rotated it  first reason there's no reason for that situation to exist initially missed the fact of areas of foreman he's put on the schedule question as well why is he sharing the same  are you saying the decision is irrational as a business matter and from that you can draw an inference that the motivation was racial or even a bad business reason for it it's just that see employers decision why do there and that and is there in this record that that decision taken in two thousand i saw the claims of so and i'm a supervisor refusing to talk to him dated back before the four year period the statute of limitations well your honor i think that's true respect you know an actual claim but i think the other thing that's important is to look at the treatment mr garman so four years later or how many years six years later after a comment is made or not made that's good instead of this two thousand and twelve decision to include a supervisor in overtime that american student she said you know with respect to racism it's not so much these outward comments because you don't see she goes it's when you go and you see somebody and suddenly these things happen and i think that's what's happening that may  was i think it was two thousand and five go back that far mr brennan provides on the job training with respect to see you diagrams you never provided to mr goddard all the time i thought i thought the evidence was mr you so and after that they go ahead and they do the work and there's no there's no reason to do this based on the fact that they made heroes or not it arose i mean the use of these diagrams is with respect to the construction of the screw the training and was turned down i don't know if you have asked for it i correct ok in the typical case if after american employee and i'm terminated and i'm replaced by a white employee that is enough of the prime official level to get going here i guess the equivalent would be if he was denied an overtime slot the only people who then got the opportunity was taken from him if they were all white that might be similar to the circumstance where a phone black employee and i'm fired in a white employee replaces me i get past causation at the private financial level but here one of the people who gets the benefit of the shift change is guess the reason why i'm pressing on that is for purpose of the premise you case you might well lose they really don't like mr garman but the question is do they really not like him because of his race and the fact that to punish him going to benefit somebody of the same race seems to cut against the idea that at the prime of whole we have an inference that the harm done to your client was done because of his race now if you have other evidence that might bump it across but just like if mr garment was fired and he was replaced by a black employee we would say well the fact that he was fired and he was mark was enough to get you past the prime of face of all because you know him france to be drawn from that given who is eligible for these positions if they become available because mr alvarez decides not to take it so you know the opportunity for that person is minimal ok and maybe that's something that they can tolerate because it's not a big deal but the bottom line is when we go back to missed the fact of harry and he comes in and he takes this position it's wrong and it's wrong for several reasons ok why can't he rotate with the h r rose if he's an h r zero which he is how can he take a position that belongs to mr graham in which can be filled by a lineman and he's a foreman the fact that he's a foreman is irrelevant and then when we file this case a year later they come up with a new plan and they say oh one either of us as a hostile environment or as disparate treatment and the lower court ruling should be affirmed i think as judge lynch you correctly noted most of the allegations regarding any discriminatory treatment because of mr carmen's race occurred well before two thousand and nine which would have been the relevant time period and in fact when you look at the deposition testimony cited in the record mr garman acknowledges that many of the instances he claims are evidence of race discrimination really don't delegation was of course the diagrams and as the court correctly noted mr garbett did admit during his deposition that he was trained when everybody else was trained and in fact during his deposition decided on the record he noted he never asked to be additionally trained on that with regard to the next asked that he claims about the treatment about mr else i believe mr brennan not speaking to him again he claims that ended in around two thousand and eight and then finally about this issue of mr sack a very somehow being put on so that he would not get overtime again mr thackeray was put on the shift in two thousand and eight plight for the ship so therefore there was no placement of anybody into the first ship whiteman position and in fact throughout this as far as the union for some of the left of bargaining agreement which was part of this record is the entity that oversees the assignment of over time the railroad they have track decides what is needed based on the operational need for the railroad and you'll see in our record that the upshot of overtime available each year changes i believe of one year there was very little overtime in two thousand and nine and two thousand and ten it was effectively higher in two thousand and eleven the amount of change again that's because of operational needs which as you noted judge which clearly is in the decision making factor of the railroad those are its business judgments and decisions mr garment always had access to the first shift over time and mr  not to have the opportunity to bid for those other things and in fact he further testified that he oftentimes turned down overtime because he didn't generally want to work overtime on sunday i could see where you're locating the argument so are you that's news to affirm the this is a below that there was not a from the fisa case made here are you asking us to affirm on the alternative ground that even if there was there was no evidence of discrimination it could go to the jury change in the way overtime was allocated if that change resulted in the one after american member of the group now having less opportunity to get overtime and all the people who benefited from the change were white facts and if there's a dispute in the record as to whether those differences mean that they're similarly situated or not in other words in a relevant way is that a question for the jury to it is it putting up more rail those are decisions that are made by the railroad and it posts the positions then the union takes over pursuant to the collective bargaining agreement and decides the proper way for his timing of that and whether or not it's being done but at that point mr mr graham would have already not you know been able to take and now it's come back to the to the railroad so again i take that position and i think it's very clear from the record that there is absolutely no evidence that any of this was race based and i don't think it's a question for a jury as to whether or not the positions could be in any instance similar because the job do you really are different there are different requirements and that is set forth as well with regard to garman's other arguments with regard to the affidavit most of them and we know in our in our documents that there's actually no real evidence before this court of discrimination the record established during his deposition establish between mr grimes claims of racial discrimination or hostile work environment and making out his prima facia case as such that the court ruled in anthrax favor and we believe you're on to that decision should be upheld for the reasons  was a change was minimal or not well i would look at first in the record whether it was minimal or not is not really a question when you look at whether it was minimal or a lot not then you should be looking and focused on the parts of the record garment when it was reallocated how much of an opportunity was then given to mr bendigo it's it's hard to tell in any given instance because it's going to be a question of if it's a first