jury to determine whether corporation has a standard operating procedure of discrimination that is whether a pattern or practice practice of discrimination exists in ted is infer from any such showing difference is that you have to judge outcomes a corporation intends the outcomes that it achieves and that's why that is under the radio the radio union case from the supreme that is why you have to look at the disparities to make it to make a distinction sometimes the disparities may be close and of course not clear that there is intentional to discrimination but sometimes the disparities are sufficient where the  the element being used establish the element of a pattern or practice separate and apart from establishing intent so if we can't use statistics outcomes that a corporation has yet to establish us to establish a prima facie case of discrimination our statistics for example could be were but perhaps in the statistics are wrong perhaps there is a legitimate a legitimate explanation for the statistics all of that goes into the issue of whether there is intentional discrimination that is relevant st sure but when you divorce the notion of statistics from establishing intent hazlewood teamster's of adams the the legacy of cases will change fundamentally and what will be required to prove discrimination would change fundamentally it would require wrecked by necessary implication jurors do do not know how to research the law they would not be able to readily deduce that statistics not only can improve a pattern or practice but the statistics can also improve intent by including this statement tying statistics just to the issue of how to practice and not and it not tying it to intent in any way that gutted our teamsters case altogether that meant that put us in a realm where fifty five standard deviations is what the statistical disparity is here we couldn't use that disparity to show intent we could only use that if you were a juror  hundred chinese folks chinese invasion chinese descent apply none of them are no other evidence that has to be discrimination based soley on the statistics could you imagine a case it is this in wish that case require not only those statistics but it also would require direct evidence of intent to discriminate in order to prevail and that that is one of this is the debate the multiple charging conferences with judges all drivers she had a different point of view and she and i debated vigorously and i just think that she got it wrong and so i think to go back to your initial question your honor a powder well maybe a problem here that's not well if you're honor i mean the way the way that the jury instructions were crafted where there are two separate it intentional discrimination is separated out and that was prejudicial to us that that took away essentially took us out of the teamsters framework and by necessary implication what it meant is that we need to show direct evidence of discrimination to on our phase one claim and we don't think that there is any case in this line of cases that was support that proposition that we had to show purposeful discrimination it what it what they said one thing they said was that it harder for players to prevail they must prove that t c s the standard operating procedure was intentionally is any implication that you need more than statistics to prove it was not accurate it is when you can't win you can't use the outcomes as to as to term and by the statistics to prove the discrimination case illustrate the point how can that ever be anything but intentional discrimination based on those outcomes alone and if you look if you look at the jury instructions and you have to put yourself in the jurors frame by frame of mind they're looking this as the law perfect it has to be purposeful and when you look at these these jury instructions and you understand why todd is emphasizing that their argument to the jury is how they're going to win the case if they're taking if they're taking the issue of divorce here the word of the tween elements one until inextricably linked to them because neither a pattern nor a practice has any meaning without it's like saying ruin them oh sure but your honor i disagree that the court told the jury or even implied that they couldn't use the just six to prove the end attentional discrimination i don't think you can read or think that there are three on  are simply no way to read them as being entirely distinct what they did the the slate distinction achieved by putting them on separate lines was driven by teamsters and by hazel d it was very important to make sure that the judge conveyed to the jury that there they had discretion to draw or not draw the inference of discriminatory intent from the pattern or practice evidence and so her approach captured the law as set forth in teamster's what you can tell oh sure she did later down on the same page in fact she told them and in two different ways all right st of all the definition of pattern or practice re st to discrimination that's the only pattern or practice before the jury so there's truly no way grammatically or otherwise to look at line one as distinct from line two when you define line one by reference to line a that's the st way in which the court made clear to the jury that these were connected the nd way is that toward the end as i think my friend mister kajang has acknowledged the court directly instructed the jury and i'm reading now in deciding whether plaintiffs have prove their claim by a preponderance of the evidence you may consider direct and or circumstantial evidence to prove each element of the claim and of course circumstance statistics are circumstantial evidence the jury was expressly invited to used any form of evidence to prove any  intentionally discriminating on the basis of race against not so asian a boy that to me is capable of the interpretation that they must show that each one of those incidents that makes up your honor when if you took the out of line too if it's perhaps more arguable that they could they had to be read distinctly but because of it isn't there and because lin one simply has no english meaning to allay juror without an of it is absolutely compelled to any lay reader to read them together they are not distinct the judge separated those two only in order to convey to the jury along under teamster's that a pattern in practice is not necessarily discrimination and that is the crux of this case the plainest wanted the jury to accept that their statistics were per torques automatically discrimination and mister cotton argued for that rather relentlessly saying that intentional discrimination is inferred meaning always and further must be inferred and the judge correctly resisted that and the judgment was largely that these detailed the ways in which there are statistics will evidence so apart i asked what oh ok so so that's piece one piece two is that although we believe the burden never shifted to us because their evidence was so weak t c s came forward with a firm motive evidence in two key respects to explain the statistics as teamsters allowed us to do and as hazelwood requires categories st was direct evidence of nondiscrimination which i can itemize for your honour's nd was the evidence suggesting discrimination would be unlikely or implausible and that the judge commented on after the verdict saying think that works here ok yes you're right as the individual situations yes an employer might not even notice how bad for business it is the terminator failed to promote the most qualified candidate but that breaks down at the scale the  they posited that t c s let five thousand dollars positions go make and every day for lack of qualified employees for going untold millions of dollars in revenue in order to aim for racial purity that is truly implausible your honor in a way that individual one office from a nation cases cannot explain the judge who set a ringside seat for all indicated that she didn't want to hear any more about proposed instructions that she had rejected in no way shape or form did she excuse the plaintiffs or anyone from objecting to the form of her instructions which they were required to do under rule fifty one at the november th conference because her instruction didn't exist before that they simply didn't exist and in fact they didn't really resemble anything that the parties had discussed before that what we need to bated on the th and i was there arguing at all of those three conferences on that date were a set drafted by the district court and circulated two days earlier that did not sufficiently resemble anything discussed before to excuse the plaintiff not only from not objecting then on the grounds that you are now but formative late assuring the district judge that her instructions were clear and acceptable i don't see how were ok so st that isn't how the system works i think both both preset knowledged that the current t c s employees were never in direct competition with external hires of the same roles the opening brief ibility and that it did not have a single witness who could have overcome a hearsay objection they did not have a sponsor setting all that aside they now point to these seven emails between line level project managers and armor employee class carry plaintiff's argument is like looking at six years worth of student text messages on a huge university campus finding seven about a preference for indians in a study group and offering them as evidence that the university administrat before her on the specific motion the volume of evidence submitted by both sides hey those are all cited in our memory the ruling granted a motion that emphasized delay over more than pure irrelevance and the court expressed concern on both at the eliminate hearing and in the order to nine new trial about streamlining utterly for all the court knew at that time these class action that was supposed to be devoted to terminations so during his in fact i know he did repeatedly said during his testimony i am not opining on intent i am only telling you ladies and gentlemen of the jury that these statistics are consistent with quote unquote consistent with an intent so i don't think your honor that that element of the closing did anything more than echo what the expert himself said more than once a look at the testimony you are doing is that in honor the closing focus and i hope that you'll bear with me here because i want to answer your question exactly how it went down at trial the closing focused on the other unreliability of the statistical evidence no and i i don't think that closing suggested to the jury that statistics wouldn't be enough under the off what the closing said was that these contests picks aren't enough and it's quite evident that from the order denying new trial that the judge believed there was there were many grounds on which the jury could have agreed without argument and i have a size again that that order has not been appealed and provides you with an overview in addition to all those admissions in our brief so i see them over my time but if you'll indulge me finally i think that there is no on which the verdict could have rested and such a disastrous set of testimony by the plaintiffs and frankly their expert that the result would have been the same even if any of these errors had any traction thank you argument and here's what here's what the attorney said in the discrimination must also be intentional which means it must be personally purposeful ok though to order for place prevail they must prevent standard operating procedure was to intentionally discriminate so what he did is he yes he's harping on he's harping on the added element that intentional discrimination a set of said seven email exchanges a series of emails evolving a whole host of books is just discussed they involve the why the line project managers is not one person is a group all of whom are engaging and instrumentation is anecdotal evidence and if these touch the evidence can't be proven to show intentional discrimination if we think that the the discussion team serves about using anecdotal evidence to bring the cold hard numbers convincing to life means nothing this is exactly what justice stewart was was intending when he wrote that in the team's st decision wh judge had bifurcated individual hiring plaintiff from the class yes and so the the hiring pace for this one individual mister buchanan was proceeding on a separate course and this was just the termination with that said there is an absolute overlap between the project managers there are the ones who are deciding who to staff it was issues the project managers are if there is a non indian relegated to the bench without work that project manager then is looking about person to see if that person should be staff to an open position with these e mails show is that the project managers the very people who are charged with staffing the positions are going outside organization to look for desk these individuals of indian descent to staff and open positions at the very same time non indians are sitting on the bench and then being fired and so is a miss helpless point that they would have no economic motivation to discriminate they are firing people and when they fire people it just so happens that the very people that their firing happen to fall within the the race in national origin category they are not for when they make that decision who to analysis included that so terminations for example that occurred in india that being part of his analysis you can look at the are the the record fifty three to fifty four at the testimony pages one