it please the court this is appeal presents basically two questions st question under title seven in section one thousand nine hundred and one if a racial slur is uttered by a decision maker but not heard by the person about whom the decision is nonproductive time then there is still to send you an agreement between the employer and employee such that overtime is not owed and related to this question if an employee complains about not being paid correctly under such piece rate system does that c policy with only within only a few months tending a nationwide company driving competition that they call the rodeo he was chosen to represent santa tonio at the rodeo because he exemplify the best of the drivers in the san antonio admitted hearing that mr lockhart had made these complaints about the pay practices and he also admitted having spoken with mr lockhart about those complaints when they returned to san antonio alongside the age our person for the center there ultimately and importantly the pay practices in san antonio were changed to conform with what mr lockhart had been advocating and in saying that they were not being paid correctly eventually they started paying them correctly now while mister whiteside made final sign off on all of the progress of discipline leading to mr lockhart's termination of the decision maker that was recommending this discipline and each step of the progressive discipline timeline including the ultimate terminations decision was testified that given his role within the company he attended management meetings where the managers would discuss employees who made complaints against management as having what they were called quote issues which meant that managers were to find reasons to write that employee mr lockhart was identified as an employee with an issue after his return from the rodeo according to mr because testimony meanwhile fellow black republic services employee robert wilson testified that he heard from land landfill supervisors juve elma and janja garza that quote this in word is going to get fired because they were talking to other people in management like frank franco would tell them what's going on and he would tell them that this guy named kenny had it out for rick and so they would take that out on rick when they would see him franco would be saying this guy named kenny has it out for rick and they're trying to get rid of him notably daniel garza who would end the two other no and black drivers did the same thing on the same day but they were not likewise terminated allegedly due to where they were in the progressive discipline policy now admittedly mr lockhart testified to never having heard such slurs by mr ramzan ski or anyone else of republic but this was never a hostile work environment case so that fact while true is really beside the point also admit lee there is no evidence from any witness that mr ramzan made such slurs in conjunction with or even close in time to any of the discipline dispensed but this was never a direct evidence case either so that fact too is beside the point this is always been a circumstantial evidence case and as such circumstances that could support an inference of racial animus must be considered and that the summary judgment stage such inferences must be indulged in racist language in the workplace is only occasionally races or at least not a racist when it legally counts such as in granting benefits or dispensing discipline a la carte argued to the district court that his situation was similar to in age direct evidence of discrimination indeed does show this court held that in a circumstantial case in which quote discriminatory remarks are just one ingredient in the overall evidentiary mix we consider remarks under the more flexible standard cited in russell vs making hospital quote to be relevant evidence considered as part of a broader circumstantial case the comments michaud one discriminatory animus two on the part of the person that is either primarily responsible for the challenge to employment action or by a person with influence or leverage over the relevant decision maker here argument below to the district court was that the record on question was showed that lockhart meets the ghetto test was primarily responsible for lockhart's discipline and ultimate terminations as well as racist comments attributed to him unquestionably show discriminatory animists thus under this more relaxed standard lockhart met his prima  hospitals specifically sides could go in a race discrimination context and held that in granting summary judgment to the defendant that quote the district court applied the wrong test the straight remarks direct evidence test to brown's race based comments which were only offered as circumstantial evidence though unpublished wallace is one of the most recent cases in a long line of cases that show this court's common practice of using mcdonald i was evidence your concepts interchangeabl between eighty eight and title seven discrimination cases and so for that reason it was error for the district court to refuse to use that you know standard or to follow the unpublished standard cited in wallace in circumstances here where we unquestionably have testimony of the decision maker making racist comments about the person who's just whose decisions affected the plaintiff's employment with the defendant and that those decisions although not heard by the by the plaintiffs nevertheless are some circumstantial evidence that the employment decisions at issue were infected or tainted by racial animus and the simming no no questions  and i would just say since i have only one minute remaining the defendants do not contest below the fact that that mr lockhart complained of and said that the met mattern means which he was being paid was incorrect but they did say that the record has no evidence that the plaintiff ever complained he was not paid in full for all hours worked or in this overtime pay was improperly calculated and this is not so the record shows the defendants change the method for calculating walk hard and other drivers pay after lockhart complained in march of two thousand and seventeen and has discussed extensively in lockhart's declaration the method for counting the cans unquestionably affected his hourly pay which is why lockhart was complaining as much as he did that lockhart did not understand fully fairly were standards how to use those words is not indicative of his not being needed it simply requires that an adverse employment action like a suspension or terminations be made because of race or that raised as a motivating factor in the decision green framework and stated the mcdonnell douglas method of proof was never intended to be rigid mechanized or ritualistic mcdonnell douglas is a burden shifting proof framework it's an efficient way of focusing  a particular case given that direct smoking gun proof of discrimination is rare the supreme court's repeatedly said that the specific elements of a crime the facie case vary with the circumstances of a given case and are flexible and  or terminations or suspension so a title seven planes have made use the privatization case where the th element is that he was otherwise just charged because of race or that he was fired under circumstances that g employees replace by someone outside the protected class under the age they compare need only be significantly younger o'connor did not mention title seven at all and nothing in the keys should be read to require any change in the application of a flexible variable to case under title seven like the eighty e t a which is based on title seven title seven similarly does not require as part of a private face the case that the claim to be replaced with someone outside of the protected class there has to be some evidence of just perhaps treatment but it just says decision makers toleration and use of egregious racial slurs in the workplace is prohibited responsible for the challenge to sit in these slurs as well as garza's mistreatment and role in lockhart's terminations are evidence of hostility towards african americans our public and contribute to a r presumption that a lot her was terminated because of his race testimony of the decision makers broad based racial animus or bias is simply corroborating evidence that the bias back to the decision challenge fail as a matter of law now as a problem in every bar i think it's important to begin with quoting out that there is no credible evidence in the record the race an inference of discrimination even under the standard plaintiff advocates you learn that plaintive doesn't even allege that he ever heard a racial slur during his employment and if you review the record on appeal pages four hundred and two thousand four hundred and one you'll see that plaintive testified the only person he believed discriminated against him was mr ranson ski the operations manager and then he went on to make clear that he didn't believe mr instance he discriminated against him because of his rights turn into the only evidence of racial slurs in the record case presence and i'm quoting from his testimony sometimes he would even say the words so even mr putin testifies to having personal knowledge of any racial remarks directed at  even if the evidence of racial remarks was credible it simply inefficient insufficient in pages thirty eight to forty two in his opinion judge rodriguez considered the evidence proffered by police and he correctly determined that the testimony in the quoting as they are not specific as to time place in context and were not made by persons responsible for the challenged employment action or by a person with influence over the decision maker judge rodriguez cited the replays which aside from the discriminatory marks race racist remarks so i think i'm glad you asked there was some evidence from disgruntled former employees that they believed that they were discriminated against determined that the plates of mr lockhart was unable to meet his burns mr home substantial evidence a pretext in this case so even if this panel determined that it can reshape the title seven leader that you were even on that panel and if that stanley case the panel conclude because there was no intervening change in the law summary judgment was appropriate on the plaintiff's race based discrimination claim because pla argument was foreclosed like this or precedence and that's exactly what we have here there's been no intervening change in the law that would allow this panel to overturn previous panel decisions which are there's a plethora of honour's there was not just a few months between mr quinn mr lockhart the plaintiff went to the competition in arizona and when he was terminated there actually eight months between that time but talking about the four  disciplinary actions that occurred leading up to mr hart's terminations they were not all related to his complaints so st play never seemed to documented verbal warning after he falsified his paper records and that was related to his complaint that he didn't like the rate at which he was being paid for certain types of piece rate test the sat gets disciplinary action was a written warning for causing approximately four thousand dollars  that there was something wrong with the truck the rd disciplinary action was when plated received a three day suspension for insubordination after he were fused to follow directions given by the make that shot mean injured and for also failing to wear a mandatory personal protective equipment note that they make this employee in fault in that issue was also disciplined and that's at record on appeal five hundred and ninety seven  finally played it was terminated and when he jeopardize his safety he jeopardize the safety of others any jeopardized to defend its permit under the texas commission on arnel quality the wows them to dump suspensions and terminations of employment and general manager brian white side also signed off on the disciplinary actions in the finally there's just no evidence that any supervisor at the landfill or any defendant was aware that drivers other than plaintiffs and his alleged compared terms mr martinez and mr lopez ever entered the landfill through the x again they were the only ones and all three of those individuals were disciplined so for all these sure i'm finished with the title seven discussion with your permission i'd like to move on and address the and that's at record on appeal i fifty nine dollars to fifty six dollars up it was painful a piece rate for over five years and although he wasn't shy about complaining about his rate of pay there's no evidence that he ever claimed that he wasn't being paid for  work and easy even is mr evans explain it mr lockhart was complaining about the rate at which he was paid for certain tasks he was not complaining that he wasn't paying for all hours w testify that the more kids he picked up in or the last time he took to pick them up the more he made per hour so he did understand the piece resistance and he acknowledged compacts require much more time regular boxes which also the piece rate compensation he agreed to and he was actually happy about for example after played it advocated for a change in the hall rights not in the way in a change in the way in which he was pay and they were changed by the way pla testify that he was really happy at that point even though he was still being paid on a piece rate basis that covered both productive and nonproductive hours that's a record on appeal for sixty and just to make sure department of labor opinions this one has not been withdrawn and it makes clear that a written agreement is not required just in case the coup or was worried about that issue so  retaliation clean i think that's clear his complaints are about his rate of pay and that's just not protected activity because they are complaints that republic services a sanitarium i only the apple is to clarify with the use of their own g the context of an hourly employee suppose mr lockhart made ten dollars an hour and he complained that he should make fifteen dollars an hour now that's a complaint about his rate of pay not plaintiff's retaliation claims he noted and again i'm quoting from his sixteen page opinion plaintive complaint that he should be getting paid more for some containers which ultimately defective his straight pay in this is overtime pay now but that is true in all cases so sorry your honor insofar as the comment that was made about the the fact that there's no comparative have his in this case that's we don't believe that's necessarily so two non black drivers engaged in the exact same misconduct by going through the side gate on the day that mr lockhart was terminated the the argument for why they were not likewise terminated on that day for that exact same conduct was because where they were in the rest of the discipline region we have tendered a a chart chart number eight which shows comparative evidence is between two and we believe that even considering that is comparative heavens they were similarly situated to mr locke are sufficient such that the that age the jury should make the determination of whether or not he was treated fairly and not the judge of the summary judgment stage so there is a comparative heavens what we believe also though is that even independent of that comparative evidence released when you're considering that comparative evidence given the commonality of mr ramsey being the decision maker as to all of that discipline right and that's shown in the disciplinary documents that we submitted when you consider that he was the common decision maker as all those individuals as to all those all business incidents the fact that there were racial comments that tributed to him in the workplace whether or not mr lockhart ever heard it or whether or not they were made close in time or as a part of the disciplinary decisions challenge here or the dutch that is still circumstantial evidence that should be considered at this point or at least should allow a jury to understand or hear from mr him since he why he's able to parse between using that kind of language but is willing to call it straight you know down the line balls and strikes when he's considering employment decisions involving is lacking who he is so fact is that if we listen magine the circumstance where we have no comparative evidence of any kind but instead during the course of discovery it's proven that the decision maker in question has a litany of social media posts where he talks about his animosity toward a given protected group right never does it at the workplace no evidence that ever happened in the workplace the question then would become could a jury infer from the fact that this person has made these kind of comments completely outside of context the workplace but nevertheless made about the person who's making a complaint from the protected group with that person be entitled to at least have a jury consider whether racial animus infected the decision and so we believe that the mcdonnell douglas standard is a standard it's not a straight jacket it is not supposed to meet the men such formulaic ways where the court cannot see the forest for the tree right so under the circumstances one could name every genus and species a given a centuries but you still have to understand that it's a force at the end of the day issue there was mention of the fact of the credibility of the witness mr google that he's not he's disgruntled he's not a he's not a person who should be believed but respectfully the credibility determinations are things that the jury should make and credibility on and those are fodder for biased cross examination rigorous cross examination on the bias that mr hoover may have to lie about mr wrenn since he similarly mr him since he could show up and say it's an absolute lie that i ever said any of these kinds of things and i i totally reject and resent the fact that anybody would ever say that about me but here again that's a decision or that is testimony that she heard by a jury and put through the crucible of a trial versus merely the pages of summary the opinion letter that was recently issued which has not been rescinded yet that depends upon the existence of a mutual agreement you still have to show the existence of a mutual agreement it can be oral it doesn't have to be documented written it can be oral but it has to at least exist what we're saying in this argument is that the agreement does not exist where there is no agreement if you don't actually follow the agreement my client claims that he was consistently not paid according to what he understood he was supposed to