my name is derek parker and i represent the plaintiff and appellant in this case and we are asking the court to reverse the district court's grant of summary judgment both on the discrimination based on race claim and on the discrimination based on retaliation  douglas and texas vs birdeen and both of those cases were decided when discrimination cases were decided by courts there was no jury trial and as a result when cases come up before the district court the courts are analyzing the cases as if we have the burden of proof of proving discrimination at the summary judgment stage the judges often say plaintiff has the burden of proving a prime facie case but the defendant only has to come forth with evidence his burden is one of production not proof and i would submit at the summary judgment stage what the court is trying to figure out is is there enough evidence for the case to go to a jury is there a finding  yes is there could a jury find facts a certain way but i think what courts are doing is courts are looking at well i'm a reasonable judge and my being persuaded that this happened but that's because title seven cases for a long time w simply decided by courts and since there since now we still have the jury trial i'm not totally sure why you're talking about this because it seemed to me that the dispute here was more about pretext than about the prima facia case which i think is where the issue you're talking about would play out except that courts including the district court in this case are requiring plaintiffs to prove that the reason for the decision is a lie and i'm saying that's not the standard the standard is whether or not a jury could look at the reason that was given and still determine whether or not discrimination took place or whether retaliation took place and in this case and that's about pretext and that's about pretext pretext doesn't mean that the decision is a lie because almost every employer can come up with a neutral nonracial a nondiscriminatory reason for its action so proving it's a lie does not end the analysis the analysis really is whether or not other evidence can show that this was not the true reason or even the real reason why isn't this just a straight summary shouldn't this be just a straight summary judgment review that is was there a fact in dispute that need to do go to a fact finder and can't be decided at the summary judgment stage is is that the rule that's the rule that i believe should be the rule but i don't think that's the rule that many district courts are using and so in our how in this case we decide what rule this district judge used i mean we're not talking about what district courts plural do we're talking about this case and this is true judge how would you argue that there was that he violated responsibilities in granting summary judgment because there was a material fact in dispute that had to go to a trial of fact well we have a we have a correction officer who has an impeccable record we have a corrections officer who doesn't take time off who doesn't use a sick leave and is talking on the yard with another correction officer about why out of three out of twenty five to thirty three officers they're selecting the two african american officers to say they're dirty with no evidence whatsoever that  so naturally he's going to believe that race must be a factor because there's no other explanation for how he's being treated so sounds did the district judge did not believe that is a fact and you say he should've or the finder of fact should i'm saying that the district once you have evidence that discrimination can be taken place we don't have to persuade the district court that that's what happened all we have to do is show it's an issue for the jury well but your claim really is a retaliation claim that is that the complaints about discrimination or responsible for triggering the ultimate action for me the key factual conclusion of the district court was the one that and his colleague and so his action is alterman decision couldn't have been based on retaliation he didn't know there was something to retaliate against that's the case why isn't it is appropriate for s memorandum you know surprise that a discipline being imposed on white but it's sort of a cat sport and alice is because it's the actions of an ac and war and generating the discipline for retaliatory reasons that gave the information and you know as you know us did not investigate the incident he simply took a stake in the word of two officers who we believe are discriminating and so therefore he's not acting in a vacuum he's acting because of the two officers bringing brought this information to him so therefore they're the ones that are guilty of this going to nation well minos made his decision let's continue with the district court's premise that he was not aware of a top retaliation i mean a claim that in a prison a corrections officer doesn't follow a direct order is a serious claim i confess i was a little startled at the proposed punishment for that claim but i think it reflects the concern by somebody who's acting as the warden that it's a problem if a corrections officer doesn't follow the order of a strike supervisor in the abstract that would be correct but you have to look at what happened here the the form itself talks about an injury it's an injury form for injury on the job when warren had and an officer who actually had an injury her back was hurting he doesn't ask her to use the form when he has an officer who is simply sick and has been asking to go home for several hours he makes them go all the way across the yard to fill out this form asking him to fill the form in and of itself was discrimination it in of itself was an act of retaliation that is that something that gives the mr white an opportunity to be insubordinate and say i'm not going to follow that order i mean from the warden's perspective even bad orders are supposed to be followed because prison discipline will break down if individual corrections officers have leave to decide which orders are going to follow and which orders  not but in theory could find in the absence of discrimination and in the absence of retaliation white women called and said we know you were sick you know you have an impeccable record even though you don't agree with this particular already you have to follow orders in the future they would not have  suspended him they would not have accused him of abandoning his post they would not have taken his pay from him this was way over the top for this type of behavior given the fact that he was an impeccable officer wouldn't pick up a record oh and ultimately the discipline was rolled so it may be in the light of day they decided a better course would be not imposing these sanctions well i think he doesn't was rolled back because there was no evidence that he had abandoned his post the evidence is what is that his sergeant gave him permission to leave so that's probably why the decision was rolled back but why would you discipline somebody like that for this type of violation this is not a an order that was given in the context of running the prison this is not an order that was given in context of treating an inmate this is an order we believe it was just to mess with him just because he had complained about how he was being treated and it's a jury question i'm sure one person could think of it one way another person could think of it another way but it's still a jury question and i do want to reserve five minutes of my time but i want to bring up another point i discussed the difference between the text of title seven and the text of one thousand nine hundred one because a panel of the ninth circuit on november the nineteenth question so i'm glad your answer yes and that brings it even more persuasive because when you look at summary judgment we're not just deciding whether or not if he had not done this he would not have been disciplined we're asking whether or not race the retaliation was a factor at all and if it was a factor at all and less the that case is overturned if it was a factor at all we have given you all of this evidence i'm giving you a whole list of evidence which shows that these officers were upset they were upset at white they were upset at morrison because they believed they were about to file charges against them and they and warren at least believed it was going to affect his ability to get promoted it was in going to affect his ability to get transferred and he retaliated whether he had a legitimate reason to discipline white maybe he did maybe he didn't but even if he did that would not preclude or prevent us from having our day in court whether or not retaliation was more likely than not what really motivated him to do what he did and i guess i would like to reserve a few minutes for rebuttal thank you interfere with your plan of your remarks but in as much as your colleague has brought up african american owned media which i i didn't get it twenty a j letter on it but it was after the briefing that our court decided the case how is that going to affect the outcome of this case and do we have to send it back for consideration under african american you read my mind your honor american media does two things it stands for the proposition that mixed mode if discrimination one thousand and one actions are permitted but if you look at the facts of this case that's not what we have here mixed motive requires evidence and to to create to rebut the legitimate nondiscriminatory reasons forward obvious action has to be specific so stansell evidence that the decision to impose ever section was racially motivated you got an order to tap dance and said that's silly i can't tap dance on doesn't matter is that a reason to give them discipline because he didn't have danced that's not a reason because that's not officially valid read and to do so but so don't we have the question here whether this form was officially valid reason i mean there it seems like some matter of fact whether the prison really required this form of people and it seems that officer white thought it was made up and it seems like there's evidence in the record that it was made up so at that point because it seems that we have some people testifying had better read regas can you see that this isn't really  has often held in bill o'reilly versus a little island there are men out versus bank of america you can be mistaken so long as it's official leave happen in that island their case at least they were mistaken about whether the rule had actually been violated but they weren't mistaken about whether the rule existed that's a different thing i mean if you're making up a rule you say all of a sudden tap dancing is a rule we have to have a question what is that really a requirement in this prison in the air case the question wasn't is tap dancing really a rule it was did this d i was subjected to seventy two nineteen whenever i called in sick but she wasn't i wasn't here because i was requesting informal time off but so what's the diff i mean they both wanted to leave early she doesn't have to fill out the form she has back and he has to fill out the farm he has a headache i don't understand the difference a key fact isn't about her back pain the key fact is sergeant warren she requested to use her cheel beef not to go out sick can you tell me where in your brief you said that is that the distinction you told us to look a the record it's cited in my brief would be happy to i might have missed there you're focused on that because i could could you tell me where in the record this differences and that's the explanation yes didn't ask to go home sick answer right well maybe back pain isn't sick ok so where in your brief you explain that i tio leave is required doesn't require the form but some kind of  three of the brief quotes is testimony right and the point of my brief was the distinction isn't vanessa polanco hispanic female officer so having back pain versus officer white black officer complaining of migraines we never did mention to officer sergeant warren by the way he just said he was sick the distinction is the form of the leave the form of the request to go home palumbo had pre sergeant warren knew about and said fine i will grant you this and that's well within his discretion but the key point i'm sorry so i mean this may be a point i just didn't understand in the brief so you do quote this thing about she was sent home  and not question about her illness but the different type of leader of i t o levy so yes i mean you're saying that there's like different categories and the problem was they were in different and doesn't have to be sickly now there may be a different situation which we don't have here if officer palumbo said i'm sick i need to take sick leave and sergeant warren said sure go ahead  supposed to be at that because post she requested i t o leave and which sergeant warren said ok i will have officer white relieve you since he's on voluntary overtime and i have an extra officer sure you can go ahead and after he mistakenly thought that for voluntary over time he gets to choose his post sergeant warren then reminds him no i'm your supervisor right now and i'm telling you to report here and in response to that officer white doesn't report there and sa i'm going home sick that's the context in which sergeant lawrence well go to the nurse's office fill out that seventy two nine hundred form come back to me with your time she and i'll excuse you and you can go home at no point section that is what the that is what offended associate warden muni's when he looked at the memorandums including that of jessica ramirez and it showed that he disobeyed an order and needs and other s all said you know we all interpreted differently sometimes we require seventy two nineteen because we want to make sure that you are safe to drive home from work sometimes it all has to do with some kind of illness taking sick leave some of some for me let me ask you about  the concern that this all would have been resolved that level but the formal discipline which went up the chain perhaps to somebody who did not know about  discrimination complaint but that never would have gone up the chain but for the animists or the response to the complaint of of warren and i never got the name of the other person  if that is true there's never discipline up the chain because the complaint never gets to that point i wouldn't necessarily agree with that proposition because there were other evidence aside from warren and pinney's memorandums and sure yes the process unfortunately did have to go through a form appeals process but that's not the product of any animists that's more than complaints that were supposed to the cause of the retaliation but things happen in the workplace all the time that never actually get to the supervisor because they're worked out of that level if a case can be made that warren sends it up the latter because he's mad at the clerk at the retaliate at he's retaliating against the complaint of discrimination wouldn't that make a a viable caus report everything that happens i mean the reality is that every time there are police officers they give you warnings they don't give you ticket sin and that's simply a lubricant that's necessary for functioning i still have the concern that could it be the case that the actual formal reporting at least part of the motivation for that was the retaliation concern i think yes in so far as if there is which we don't have here specific substantial evidence of some pretext some priests so for example if there was a valid compared or in which another white officer disobeyed orders and yet warren and he did nothing we don't have that here what we have here is one officer who undisputedly disobeyed an order and only one officer under  illnesses and back pain no cite nothing in the record to tell me that there are different policies about pre approval even sickly if you just read it to us but i'm wondering whether this was in your motion for summary judgment that the real issue here was the  appropriate compared or of a similar similarly situated person here isn't someone who it's noticeably lacking because it's not about someone who was forced to do the seventeen nineteen right because he wasn't  fill out this form come back to me so i can sign you out it was the combination of those two things and so when we look at the proper comparatives we have to look at who was subjected to the a seventy two nineteen form is not an adversary because it doesn't change the terms and conditions of employment it just depends whether they're setting him up with a silly thing i mean if they tell him to tap dance and he doesn't tap dance and they tell someone else you know and they don't require dance then now they're set up this false thing so then they can discipline him i think that's his theory and i maybe maybe it falls apart because actually there's no comparison to she was asking for a different kind of leave so maybe that is the answer at b i mean your brief also says or there was some difference from an illness and back pain that doesn't make any sense to me so i thought that was the thrust of your argument but i guess i misunderstood the senate i'll address your honor's just throwing a hypothetical as there could be because the difference between gender which is not a section one hundred one claim it could be all sorts of things we can only speculate because we don't know what we do know that it's not based on race the council and like let me use your last fifty seconds i'd like to add to could you go back to america african american owned media in the past we've used interchangeably one thousand nine hundred eighty one and title seven there's a there's a grave doubt now after that case whether we can do that  was that issue implicated in this appeal ultimately you know because there is no evidence of any mixed motive there's no evidence of any racial animus the best argument and evidence that has are based on his own subjective belief that he was the target of race retaliation discrimination and multiple levels of hearsay but i the record to officer pender's declaration that because most of the hearsay statements were attributed to her having overheard comments made by warren in pinnies and yet when she was deposed i'm not declaration and i apologize when she was deposed she flat out the night any of that occurred and her deposition issue where were you proceeding in this case under which i'm sorry the title seven and the in one thousand nine hundred one what was the basis of your case here the basis of our case  one but that's not implicate that's an issue not implicated here because there is no substantial specific evidence of any racial or retaliatory atmos so i'm found in the district court order that just a quarter says the warrant explain the difference in treatment by  noting that polanco complained of back pain rather than illness this explanation does not resolve the factual disagreement between witnesses over whether plaintiff was subjected to a standard protocol or something else where is that where you think you talked about i  it's of discriminatory or racial or retaliatory animus which which we don't really have here given that to tell any of the circumstances if you look at all of the evidence as a whole there just isn't it doesn't rise to the level of specifics of santer evidence to rebut a discriminatory nondiscriminatory legitimate reason for the adverse reaction and ultimately warren was not the decision maker on this it was so if it were the only nice you're on is when i began my argument i made the distinction between how tight a seven cases were decided prior to their being allowed jury trials and that language about specific and substantial evidence goes more toward the burden of proof in a trial if for example all you have is a person says i'm african american i was discharged if that's what their private face a case is and the senate comes back with a legitimate nondiscriminatory reason for the discharge at that point maybe he has to do a little bit more to show pretext but if the issue is is there enough evidence for a jury to decide the case which we contend that is the only standard title seven or discrimination actions are no special form vaccines the standards to still be the same can a jury look at these facts and decide the case plaintiff's way and i say that it can and you know during discovery and i put this in my reply brief at page eight during discovery we specifically asked why aren't what the distinction was you know why the difference in treatment and if you look at the top of pace eight i asked him to explain it and he goes off as a longo told me her back hurt she didn't say she was sick and then i say and that's the distinction in your mind and he says yes he didn't go on to say no this is different because he asked for a different type of leaf he was asked the question and this is the answer that he gave a jury could believe that he's a liar the jury could believe that he's just making this stuff up also if the form says report of injury and she has a hurt back and he sick because he's having migraines how is it more persuasive that he would ask white to fill out this form and that plant go the reason is but i'm not sure that's the discrimination claim you're pursuing here that is the injury by being told to fill out a form which i think the complaint is he decided it was up to him to decide whether or not to comply with that order even if he were asked to fill a form that she wasn't asked to fill out what's the cause of action that results from that because it's but that itself wouldn't be an adverse employment action sufficient to bring a case right right and i would not problems flow from his reaction to that and i may understand their actions from a human being basis but as a corrections officer is it his job to decide which orders he's going to follow is not what and he did not follow that order and not follow that order but he was and why isn't that a legitimate basis for discipline separate and apart from any claim of discrimination it is a legitimate basis for discrimination in the abstract but in reality given the sequence of events and i laid out the timeline in my brief beginning on july third in reality it may be a legitimate reason to discipline but that wasn't the reason in this case a jury could look at these facts and decide maybe that is a legitimate reason but that's not what was motivating warren open easy in this case to show that why don't you need someone else who violated an order who wasn't disciplined if if you're if your evidence simply consists of i made a complaint he did this maybe you do but there's the difference is that white amp and i mean the police and warren are speaking about it oh i hear you complaining about me oh i hear you're going to file papers i hear you think we're races these things are being said after the fact and he takes twenty one days to come up with these disciplines and they do it on the same day what are the odds of that happening i jury could easily conclude that they did it because of the sequence of events that preceded it if this is not a big deal for an officer like officer white who was an exemplary officer right this is not a big deal if if they want to say to white on the tenth or the eleventh hey you know you can't just follow orders that you think are appropriate they would have said something to him that would have been reasonable but to wait to after this whole sequence of events where they are sure that now morrison has has filed a memorandum now morrison has made it clear that white is the source of his evidence then they do it a jury could easily conclude that this is discrimination and even answer to your honest question even if the jury concluded that this was a legitimate reason to discipline they could still find that he was retaliated against thank you counsel your time is up thank you both sides for the helpful arguments the case ok the last case i'm calendar is