breach of contract claim is simple we have alleged that they failed to give him the proper ninety days notice prior to terminate his contract after we made the arbitration demand the defendant scott and white moved in arbitration to court in this case this time is successfully essentially arguing what are attaining what amounts to a permanent injunction on the arbitration the st issue is who is supposed to decide this issue is it supposed to be something for the arbitrator to decide or something for the court nobody disputes that the breach of contract claim is subject to an arbitration agreement but if he wanted the discrimination claim also be subject to the arbitration agreement it says disputes arising out of this agreement the agreement is why he's employed i agree that it's possible that it is objecting to the arbitration agreement but it's also proper in federal court and about splitting causes of action are cases where the cause of action that was split was not armed but he so here all of the claims as far as i can tell would have been our bridgeable could have gone arbitration all of them at the start but having failed to do that then there's no we're not longer in the split world that these other cases where are we well i think it's possible that the discrimination claim could be arbuckle but nobody ever moved to compel and therefore it was proper to file or to be in the fed i mean that's always true right you don't ha if neither side asks for arbitration the judge isn't going to sue a sponsor send you to arbitration but you also could have litigated the contract claim in the federal court with under supplemental jurisdiction well i don't think that the breach of contract claim would be proper in federal court it's a state law a breach of contract claim between non diverse parties have but it's a supplemental jurisdiction the court could exercise supplemental jurisdiction but given the agreement in the contract saying that it's proper that it's subject to arbitration it's clearly proper in arbitration i mean i grant you that it's an interesting question that we've both sides have not been able to find a case directly on point but the contract claim with respect to the previously filed discrimination claim so the u s supreme court in housing them in two thousand and two you stated that procedural distinguishing between deciding whether a federal judgment was subject to race judicata this might be a good argument if the district court had actually resolved the breach of contract claim if we had ever made a breach of contract claim in federal court arguing supplemental jurisdiction if the court had ruled on that then yes we couldn't then  arbitration demand and then somehow argue that the arbitrator should decide ratio to kind of that would be something for the court but in this particular case the court never reached the merits of the breach of contract claim the claim was never asserted in the federal lawsuit and therefore it's a procedural issue to be decided by the arbitrator and in fact the arbitrator did decide bill claims when one of the parties filed a motion compel even where the result would be the result of inefficient make it's of separate proceeding those are the cases i was talking about or any of those cases like this one were all the claims were are bridgeable and some of the are which will claims had already been fully litigated in court i agree or and that's why this is a unique case and doesn't that make the difference because i understand the concept of splitting if this arbitration clause had said claims a breach of contract can be our trouble and said nothing about anything else then you would have all the case law that you're talking about different because that's a split because the e venue for the discrimination claim because it is proper venue for a federal court to decide it and i wasn't sure whether or not the arbitration agreement covered it or not but if the defendant was going to compel arbitration then we would then get today issue and address it in the court would make that decision if the court has the defendant's been consistent not trying to get to arbitration when it had litigated in federal court and now saying you can't back into the arbitration after you pick the federal form to litigate the related disputes now you may argue they're not related i understand that but the defendant is saying they are lying if it isn't taking inconsistent positions on arbitration you are were your client is right well i don't think they're really related to to get to what you were just saying that the issue in the discrimination claim is whether or not age or disability motivated the people involved in this case to terminate my client the issue on the breach contract to simply was that or proper notice given under the contract and what we're saying is that since and the contract says you have to get ninety overlap though because aren't you arguing on the discrimination claim one of the arguments for pretax is that they didn't follow the contractual procedure for terminations how do you how do you deal with that overlap in the district court did have to get into the determination question at least as part of well it's what the the failure to follow the contract is evidence of a discriminatory motive it's not necessarily we're making that claim itself there's you know as you know judge justice there's many ways to show and pretext and one of them is failure and we can have inconsistent results which is one of the things claim splitting tries to avoid because i'm pretext the district court here did and didn't find it to be a problem that there was no notice provided and then you could go to an arbitration and the arbitration says yes that was a that was required right well the claim splitting if there was an arbitration if the f a a had never been passed which you know for me i would prefer but it is and that's what causes this problem obviously if the arbitration clause didn't exist or the f a a didn't exist we would be filing a breach of contract claim here in a discrimination claim there but that's you know a consequence of the act itself and there's nothing improper that i can see about finally a federal discrimination lawsuit in federal court and also at the same time filing a breach of contract claim for failure to provide the requisite notice it wasn't at the same time well it was later that's greg i'm quite a bit later and after quite a bit had happened that's the whole point quite a bit it happened in the litigation and so that's the notion of waiving arbitration and then the question is does that waiver apply to the contract claim and you would say no because they're very different and defenses yes because they're similar for the reason that judge cost dimension so that seems that's part of the mix but if you done it on day one you file in federal court the discrimination and arbitration arena you file the contract that and five days later or two and a half years later doesn't really get to the claim splitting argument it does go to the waiver argument saludos and with that we've cited the subway versus fo circuit and all over that there is a strong presumption against waiver of arbitration there has to be an overt act which we never asserted a breach of contract claim in a federal discrimination lawsuit and then scott and white must also show prejudice let me ask you this what additional discovery would need to be done to flesh out the breach of contract claim that has not already been done in the federal education very little bit i don't think there would need to be any discovery on that bridge contract claim really at all i mean it's you know you read the contract the only dispute is whether or not he was fired or quit i mean isn't that the dispute of whether  know nobody was asked during the federal lawsuit about the circumstances of his resignation that didn't come up well it was that came in the cut and that is no i mean that's my point you now flushed that out in the deposition process muser anything more that you would do in arbitration to find out you know how the resignation happened what was said to him what he says happened what they said you know all that i wouldn't i wouldn't probably i'm ready to try the case right away ok so to the extent that you get a benefit from a more robust federal deposition and discovery process then you have an arbitration and that has already happened and that's central to the whole waiver concept but we we could have taken depositions in arbitration if we did follow the arbitration and beginning all the discovery that took place in the federal case would have happened anyway that's why i'm saying they're not prejudice they would've had to do that discovery regardless if we'd never filed a breach of contract arbitration the exact same discovery that took place in this case would have happened so they haven't really shown any prejudice and you have to show prejudice to get to that the waiver or get the waiver our notion that arbitration discovery can be more limited than federal court discovery is not accurate but it can but that the arbitration agreement itself that we're talking about here point is they didn't suffer anything that they would have already suffered they had to do discovery in the discrimination case they did it and it wasn't pursuant to investigating a breach of contract claim and so and they haven't shown any prejudice  trial to be for the purpose of this argument to be brief i'm going to skip or argument that they have not stated nondiscriminatory reason and go right into the evidence a pretext dr robert watson was the decision maker here we are not and we have not ever argued that he was motivated by age discrimination in fact when i took his deposition it was clear to me that he highly respected dr seven telly and was not particularly happy with what he was having to do and i'm c m of the time so ma'am please the court my name is ryan and i will be presenting argonaut behalf of defendants apne scott and white given the arguments that mr melton presented i'm going to concentrate on two specific issues for the court today  client precedent from this court both the litigation waiver doctrine as well as the claim splitting doctrine separately barred dr salvatore from belatedly trying to arbitrate his claim for breach of contract nd with regard to teles claim under the age discrimination employment act dr sabotage failed to present evidence of pretext turning my st point regarding litigation wavering claims splitting the court started here and i think that's a very necessary and logical explicitly stated to judge pittman plaintiff the knives discrimination claims are covered by the arbitration agreement he stated the same to this court on page forty of his brief if you look at the actual arbitration agreement at issue here it provides any controversies disputes or claims arising out of or relating to this agreement and that's the very key language for this court or breach thereof shall be resolved soley by any more i agree the briefing made it seem like it was some argument of the state court they did make a lot of sense to me and so forth but now it seems more arguing that you're entitled to claim split even if all of the claims are magickal so what's your response to that  let me skip ahead to that so i think the broader sponsor is those claims had to be arbitrated once dr sabots helli chose to proceed in federal court the result is both separately the litigation waiver doctrine claim doctrine bar him from arbitrating so a specific regard to the litigation waiver doctrine there's two elements the worst there is discussion about a court ruling a court ruling unlike residue t  st element is what he was saying about the same coin language in the subway decision it's it is pretty strong language that has to be the same you only waive the same claim not certainly these claims arise out of the same incident but i mean they are different claims ones a state law contract clime one is a federal anti discrimination claiming those would typically not be considered the same claim so how do you how do you get around that language i mean i think if you look at page three hundred and twenty nine dollars of that opinion th explained that that the letter get less just engage in some overt act and court that events as a diet the desire to resolve the arbiter are the triple litigation rather than arbitrator and i can point the court to a few what it says for the for the same coin and i'll point the court to the specific points in the record if you look at page force you start with for seventy of the record dr salvatore and attaches entire employment agreement to his response of posing summary judgment a full and final summary judgment opposing dismissal and it component of that was for judge pittman to decide was a breach of contract he was trying to avoid a complete dismissal if that's not central section in his response and titled the contract and perhaps most importantly chief judge i think addresses your point if you look at page three hundred and seventy eight of the record he specifically argued to judge pittman quote scott  so he was asking judge pitman to enter a ruling on the exact same exactly the same issue as arbitration but he didn't stop a judge pittman if you look at pages one hundred and sixty two thousand one hundred and twenty eight of his brief to this court he's asking this court to requirement because it comes in through the pretext discussion yes your honor and he sat in that i agree it's the same issue it's not it's i'm not sure it's the same crime but i haven't and i'm sure you looked at this before i came to our you know we have a lot of side the state courts you know are just as competent as the federal courts in deciding whether there's race judicata or not which leads me to think that they are tracing can proceed and it's up to the state courts to decide whether the federal today he said the army tried to rule there's no race to kind of so is that just suspended or what's happening no i think judge pitman's or put it into that and i would say that the city enjoying it he did not i think i think this goes to dr sabah teles nd argument opposing claims putting when he says that's for the arbitrator to decide not for this quarter for arguing that waiver was for the arbitrator to decide this court explained that yes looking at the hostile opinion that court made specific reference to waiver and similar defenses and so the plaintiff's argument had quote surface appeal but it was nonetheless and correct and this court agreed with the rd circuit and said look when you when you consider the hosam opinion and its entirety in context well it becomes clear that the hostile court was referring only t waiver delay or like defenses arising from noncompliance with contractual conditions proceed at the arbitration and not to claims based on active litigation in court this court went further to explain that litigation conduct judge whether it amounts to waiver but on the the claim splitting that's where when i read the other circuits are contrary to what the district court did here do you have any court of appeals decision that said in our bid it's for a court rather than again miller brewing company i looked it up last night since hossam has been cited by this court at least eighteen times with approval and has never been overturned and it's the well established case in this circuit and as far as i can tell  other circuit called that point and question so i think because scott white's claims but in defense arises solely from dr sabotage judicial conduct in judge pitman's court and because judge pittman was in the best position decide whether or not his order precluded that new claim that was trying to be brought then it is a decision for the court not the arbitrator to decide what is the core two issues i don't understand like i said i'm going to geisha away were you looking at the whole you know what did they do in discovery what did they do when that gets really into the weeds the rest you have caught i mean all the time we decide the preclusion effect of a state court judgment we want the judge in that case and it's just a legal question why i don't understand why waiver delay or like defense or arbitron ability time limits notices latches stoppel and other conditions proceed into an obligation arbitrate so this year it's not being barred because there are some condition proceed or prerequisite to arbitration that was not met the issue is that is that after the fact after the fact the misconduct that occurred and so he cannot he  has waived that right and i think it goes back to the very initial starting point which is these were two claims that were absolutely required to be arbitrated and so and scott and white raise that in its original answer it made sure to no that his discrimination claims were subject to our this arbitration provisions so he was well aware from the very beginning that i was you have the right not to enforce the arbitration has decided you were happy and that's correct were we trust of the federal court where in and we exercise our right just like you exercise his right to waive arbitration and then action in other words if there are several claims that arise from a common nucleus of operative fact you can't split up those claims and bring them in separate forums with regard to the merits of that argument there's no disputing that dr claim for breach of employment contract and his discrimination claims arise from the common nucleus mop of the factors judge pittman correctly observed all the claims arise from scott white's request for him to resign so for all those reasons we think dr until he waived his right to arbitrate breach of contract law turning to the nd issue those addressed today dr sub tellee did not present evidence to support a pretext he supports he provides three grounds for pretexts st and foremost he argues that scott and white presented inconsistent reasons in his focus there is the very st and or the very last meeting where he was asked to resign he said no reason was provided as to why he's being asked to resign but it's clear if you look at the record that argument was created solely to try and of the way in summary judgment the last minute and in this affidavit that he submitted judge pittman he represented during my determination meeting dr watson basically told me i was being terminated did not explain why that some page for a six the record and now he's representing to this panel on page twenty one of his brief quote plaintiff was given no reason for his terminations time is terminated but the record very very clearly disputes  contradicts that if you look at page fifty thousand five hundred and three of the record that's his charge the e e o c where he argued or he swore that at the time i was terminated my supervisor remarked when discussing an incident where a nurse had gotten upset after i told her how to properly perform or job so he's admitting there not only was he given the reason he was giving us given a specific example paragraph or point two of his complaint which he never meant it he gave that it he stated that same thing to judge pittman and then page one hundred and sixty six dollars of the record and his deposition which was before his affidavit he admitted that during the resignation meeting dr watson the decision maker quote mentioned the jessica thing as an example of the issue and if you look at the record the jessica thing was where the director of radiology jessica the lawn broke down crying in tears and left work sixty day terminations or ninety day terminations provision that scott white failed to comply with under this court's precedent that there is no probative value and less there is evidence that similarly situated employees are treated differently there is none here but beyond that as we've discussed that provision don't even apply because he was not terminated he was asked to resign so i see my time's wrapping up what i will say with regard to both discrimination claims as it boils down this i don't care what workplace you're and it's not ok to treat people in a way that makes them cry it's not ok to treat people in a way that makes them quit it's not ok to treat people in a way that makes and transfer jobs there's examples of many different people having that reaction d but in this workplace in particular when dysfunction occurs lives are put at risk literally and so for the sake of its patients and the sake of its other employees scott white had no choice but to ask for his resignation thank your  i do not believe they have cited or that there is a circuit court case that supports of the lower court said that this is an issue for the lower court instead of the arbitrator and the miller brewing case and that  and housen which as we all know says that procedural issues are to be decided by the arbitrator and i think all the circuits that have addressed it have found that in this particular situation it should be go into the arbitrator the cases they cite in the lower court sites and dick to say that a federal court could potentially and decide the issue but they don't make that holding and i think what they're talking about should be enjoined by the federal court to protect some judgment but that's not what happened here so what would happen i mean hypothetically if we affirm you said the arbitrator stayed the arbitration so hypothetically if we affirmed even there's no provision in ratio kata and then also that way the district court didn't address the i get to the waiver argument because it decided that the claim splitting argument was dispositive so sensually as a practical matter an injunction was so i guess maybe just dismiss it i guess and then the issue never gets decided by anybody whether or not the contract claim was the ninety day provision was met so that's not a great answer for chief justice but because i really thought of that but that's probably as a practical matter what would happen as i was saying the age discrimination claim what we've always former radiology manager tammy peyton's declaration which very rarely seems to get addressed makes clear that there is at least a fact issue that the problems in the department were not being caused discriminatory motive and to be made by the person responsible for the adverse action or somebody with influence or leverage the district or to focus on the word leverage what we argued was the word influence and we believe they influence determination