good morning good morning york city housing authority decision it just says that you need to be able to perform the duties of your occupation and in this in this regard a simple mr franken is licensed and qualified to drive a bus and if the court said that  disorder and in that case it's the judge said that because the plaintiff's was admitted to test that he was essentially perse a unqualified what was his job that person's job court so in in this case the lower court said essentially is making a per se determination that if you're found to violate a company policy then you're unqualified for the position is hardly one for racial discrimination and if you follow the interpretation of the district court it's he's saying that if a an employee violates a company policy then and they're  the second issue with the district court's decision is that it rejected the comparatives the plaintiffs put forward as being similarly situated in order to prove an inference  company records kenneth walker arrived at the garage at the final destination of his stop at one time and he put a different time when his time on his the card that's the company's definition of force the petition of company records he wasn't charged with it but it's the charge to look to the bigger the main charge and that's that the over time making a distinction between these two really is of no value it's released punishing one employee for the method in which they create the the if you engage in personal time a for example make a phone call during work hours and then you get overtime for that even though you put the correct the correct hours on the record you know there is issues if you your adversary's argument that when you draw a distinction between ceiling over time and falsifying the time card what you're doing is distinguishing between two techniques for doing the same thing which is the overt but not so your honor but let me just go into what really happens a bus driver is given a day card which says this is your route you're supposed to be here at  x time you're supposed to be there at y time and then at the end of the day they come into the garage and that and the time of coming into the garage is not the time when they stop work because when they get into the garage they have to do an inspection of the bus they post trip inspection of the bus they also may have to drive the bus  we've talked about ross roth she says arrived at a certain time but if you look at roth you will see that ross also had to drive the bus to the fuel line and that was work when you leave the bus that's not work there is also a distinction between a few do work after you get out of the bus it's not work that's correct once you leave the bus it's the company's position that it is not compensable time and you're supposed to go to the put in your day card a chord entry has to be the time you return to the bus to the know it has to be the time you stop work f lee you part the bus but then how do you know when they're mr franklin didn't work until ten minutes to ten because they looked at the camera on the bus and they saw that he arrived keep working after he leaves the bus what good does it do to look at the camera on the bus no they they saw the carrier on the bus they saw that he left the bus actually at nine o eight he arrived at nine he was talking to somebody another employee for eight minutes and they saw him on the t v leaving the bus at nine o eight by the way he admitted at three different hearings that he didn't work you know as well at the first level that they have a very elaborate system of due process they have a first level hearing in which they are there is the union present somebody had to decide years at least forty two minutes unaccounted for he wasn't working correct yes the basis of what evidence did that person make that initial determination without regard to what he admitted later is where you hand in the day card but mr ross did work afterward as i understand no he did work on the bus after he arrived at the depot you got to the depot that particular night and then he said that he had to do his post trip inspection of the bus which is done in the garage when you'd be able to check something well the question is i'm not sure that there were cameras at ruth's time let me just check see worse was in two thousand and ten there may or may not have been cameras and there were only a few minutes that they were talking about not asking for forty minutes but in any event there is collateral estoppel in the coca cola like this general who is guilty of theft and the issue is whether somebody who is guilty of theft is quote is qualified under the mcdonnell douglas have look i mean you have a bartender who can make twenty five drinks in ten seconds each when you conclude that a qualified bartender yes he's wrong he's on the clock he's working with the bar the person that is taking some of the money that's being paid and putting in his pocket let's assume for the sake of this that he was qualified because he's the best bus driver that ever went around the indy five hundred track suman he's qualified for purposes the bottom line is can terminate somebody for theft and that there was no real there was no real evidence of racial discrimination there's not a single not a single comment quoted in the record from any supervisor or manager of a racial nature there is a whole plethora of african american people who are going through the process and who had reasons for their delay on the road and the reasons were accepted in this case he never had a reason he never told us he was working if people are not african american going through this process and i'm sure it's there everybody is you know they're there and there are some you will you will see for example there was mr carter who were there who was terminated for theft of overtime he was put back to work with a long suspension by the arbitrator because the arbitrator felt that they had been inconsistent in how they were doing these are these cases and as a result and according to his recommendation they put out a memorandum mister carter was white there was a hispanic who was also put back to work by the by the arbitrator on that basis they put out a memorandum that said that if you are guilty of theft of overtime which this gentleman was found to be you will be you will be subject to work terminations he read the memorandum it's in the it's in the record and it was clear  neither brought that this is a difference your honour's between someone saying look i'm on the road and i'm supposed to be going on my deadhead back to the garage i pull the bus over there is a hearing there ask why did you put the boat a bus over they say i had to go to use the restroom i had a personal emergency in one case a gentleman was doing when had a problem is his daughter was ill he received a call from his daughter while on the road he pulled over after he finished his run in december two thousand and seven an arbitrator explicitly ruled that the employer defendant here was arbitrarily disciplining employees for theft of overtime that is essentially what our plaintiff the same exact claim i think of his making after that arbitrated made that ruling the company issued a memo saying that all employees would be discharged with theft of overtime and they would not accept any excuses but when you look at the that there are two african americans that war charged with that over time and given they were able to give excuses but they kept their job but what they don't mention is that they were they were formally warned while the contacts were not warned for their excuses they extend their reason and accepted without without further investigation another important distinction that has to be made is the intensity of the investigation the best additions that were done for the suspicion by following the bus for like two days right that was ronald ronald dingman they followed him for two days that was that was it that was the extent of the investigation seemed like a fairly extensive investigation i mean you just devoted two days to try to find something that somebody is doing but all of the african american employees were subjected to that and more and for the cocaine employees that that's the extent of their investigation and how much carol for instance is african