claims against his former employer american seafoods in three ways first the district court disregarded specific and substantial evidence supporting his claims second his view of the evidence in a light most favorable to  made poor decisions adverse to him in which the company promoted individuals of norwegian national origin over him the first decision was in september two thousand and one in which a s c appointed norwegian born  range and see that in context he was given favorable treatment as well as unfavorable i do because circumstances change from the time he was given favorable treatment and i would submit that it was not as favorable as a s c would have you believe but the circumstances changed because in the fall of two thousand and one the critical circumstances happened to norwegian born masters came and became was american seafoods vice president of operations he is norwegian born so there's no just distinction between citizen and non citizen here this year we're just looking at a national origin basis all relevant to make that the same actor inference should not be allowed in this case because circumstances are different you say that before two thousand and one there were no norwegian born or norwegian captains of the level four american c from you know any evidence of that well what will make for that is not entirely true but what i've suggesting here is we have three we have two captains who came to american seafoods individual as talk about only not he's the individual who became the master on american dynasty for the two thousand and two fishing season the evidence is he did not receive his master's license until early two thousand  claims concerning the appointments of relief master and the american dynasty and then the claim concerning the appointment of a master on the t v and beginning of two thousand and two we don't know when he received his master's license and that's important because one of the facts that was submitting to the evidence is larry paul ryan was also removed from his position to replace him the more we asked the question is a little bit broader than we have to take into account we're talking about the for james coglan in two thousand by transferring him over to the american dynasty and the argument and what the what the district court said is that raises the same actor in france because if he had treated him favorably in that instance he would not have treated him unfairly and other who determines whether it's favorable or not is it just the individual mr card if he says it's not favorable not the stand the fact that in context it made clear to another observer to be favorable what controls interesting lead here coughlan consider that transfer to be favorable because it allowed him to get more wages but the answer your question it's individual who makes the decision on the transfer in this case as to whether it's favorable enough that decision was made by england radius and who testified that he did not consider that transfer to be favorable the reason he made the transfer was because it was frankly out of standpoint of earning a living it's better coughlin would agree with you on that that's why he viewed the transfers favorable but i think you have to look inside the mind of the decision maker and whether he considered  the decision maker here did not consider that to be a promotion you considered really to be a transfer from one person to another after a b c proffered its explanation for making the four decisions at issue the remaining question boils down to this did coughlan present specific and substantial evidence showing that interest and was motivated by national origin in making the four decisions at issue one perhaps mcdonnell related question i'm curious about the protected class here a suspect class  it is certainly clear as to who the potential that guys are so to speak and if there was ethnic norwegians but is that enough to establish a class standing in other words as is it sufficient simply to be a non ethnic or we didn't to be able to have standing to bring this kind of case in this national origin case it's sufficient that he is american born and is in a protected class of american born workers when they are discriminated against by norwegian born workers or decision this is this is you have to admit this is an unusual setting typically he could either offer evidence from which a direct inference could be made a s c was motivated by national origin or he could offer evidence indirectly inferring discriminatory motive by showing that a f c s proffered explanations for the four decisions are unworthy of credence because they were an internally consistent or otherwise unbelievable the logic behind the second option is simply that of a fact finder rejects the employer's pro directly inferred include the following one each of the four decisions adversely affecting coghlan over a four month period a s e chose a norwegian born individual over him second with respect to one of is qualified cations were superior not and had never before served as a master or in the on a u s flagged vessel or on any other vessel operating within the us waters his last service as a master occurred shows the premises for those particular reasons to be false and that and ricin knew or had very good reason to know that those premises were false i would like to save time for  as they please the court my name is alexander higgins on behalf of american seafoods and give you a very brief overview discuss the proper appropriate legal standard and then go over the facts supporting summary judgment in this case the undisputed facts and then credence that is is not correct in the ny circuit it has always been consistent them with that where the plaintiff does not have direct evidence of discrimination such as a bigoted statement let's get rid of the americans something like that you need to prove through specific substantial evidence of pretexts to survive summary judgment also i think an important part of the legal standard here to keep in mind is when you're looking at the defendant's business reasons for making this decision it's not whether those business decisions were good or even whether they were they were right it's whether they were honestly believed as the really a rino case cited in our brief on page twenty one states in judging whether the employer's for for justification is a small squat and quote it is not important whether they were objectively false right or wrong courts only require that an employer honestly believed it's reasons for his actions even if it's reasons were foolish trivial or even baseless obviously we're not saying that those reasons were in this case but that sets the legal standard through evidence could find that national origin discrimination motivated the actors here that's important because it goes to one of your honor's questions earlier about is this an unusual case where again a white american comes in and says i'm doing this for many against by american if you all see that all right i mean i don't think your opponent can see it but certainly certainly thank you your honor judge ross dean did specifically also find that the no rational trier of fact if i discrimination in light of the undisputed evidence here the undisputed evidence is that the president of the company might hide there's an american and there's no allegation that he has a bias against americans in this case there was no deposition testimony or other evidence to that effect should be running that that's going to be just kept correct that's what they understood so the day that they contact frank vargas who is again an american citizen born in america and plaintiff that mitt's in his deposition has no bia doesn't believe he has a bias against americans makes a strong recommendation to andreas and vice president of operations has to make the ultimate call that hogland plaintiff should be removed from the dynasty  quite a bit of money he had he asked for a television in the in the bridge where he was watching mariners games apparently the chief engineer reported to mr vargas he has the t v up on the console while he's fishing watching mariner games and that was and he was making complaints to other crew about captain peterson and that was a concern for mr vargas why is he undercutting is his partner on this vessel third or fifth i should say mr vargas took into account the past performance issues that mr coglan had while on other vessels and these are again undisputed facts on the victoria and when he was master he failed the post crisis led to a lawsuit it was mentioned in his performance evaluation of the time it wasn't something we've made up after the fact it was clear in the record at the time when he was on the katy end he failed to manage a conflict between the crew and national marine fisheries service personnel leading to a twenty thousand dollar fine against the company he admits in his deposition planet that he could have handled that better and he was talked to about that situation by company management including the president finally making the decision about whether plaintiff should be removed and peterson stay on board which is one of the things the planet complains about well why did peterson get demoted from captain the maid you know like why do i get blamed for what should have been peterson's fault barges dip into account the peterson of the sailing for forty three years without any of the significant performance issues that had gone on in the undisputed forms issues that have gone on before in mr coughlan's career now in terms of mr andreessen it's important to know that the for business reasons i don't think i understand your question i agree with you that there is an issue of fact in the record about who whether the receive the message and whether you call them back it's not a material issue a fact however because it doesn't show that vargas had h two forty two of his deposition lines for three twenty five all right and i can read you that portion of this basically do you believe that frank vargas is biased against you because you're american and he says no i don't believe he has bias against americans think there's a dispute about the amount of damage there is a dispute as you as you raise about whether it was disproportionate to the other vessels our perspective is from frank vargas has submitted a declaration that in relation to the total catch of all the of it is disproportionate you would expect that a vessel that's not catching as many fish and putting that kind of strain on the gear is not going to have the kind of losses that the dynasty had so when you look at just the raw numbers it doesn't look that but when you look at vargas as explanation it's pretty clear that it is disproportionate and again it's not whether marcus is right or wrong it's whether there's any evidence that marcus didn't honestly believe this assessment of the damage being disproportionate in view of his business judgment about how to how to  actor in france was just the political three years down the road the person was hired when they were sixty and fired when they were sixty three in each case they said well they knew they were old at the time they hired him are older and there's no inference of age discrimination from that based on less discriminatory in one thousand nine hundred seven than in two thousand and one and what would the basis of that the shouldn't plaintiff have to come up with some logical reason why mr andreessen would be less prejudiced if he is prejudiced against americans  at this point i'm the only thing that offers that these captains weren't available well many captains were available many norwegian born captains were available in fact we have evidence on the record that there were hundreds of people laid off in  he says well i wouldn't call it a promotion because technically he's going from a master on one vessel to the mate on the other he never asked him the question did you think it was a more favorable position and i think this time very some would have said ye says it was a lot more fact i have the exact quote it was a lot more attractive to me on page forty of the brief they write when more desirable more favorable position whether you want to call it a promotion or not and risen got hung up on the semantics of whether to call it a promotion he was never asked whether he thought it was even more or less favorable position and i think the evidence from plaintiff's admissions is undisputed on that that it w favorable position then i think a really critical piece of evidence is that when there's this opening on the dynasty the first person the job is open to an offer to his captain is an american and drafts and vargas issued from norway mr collins makes a big point about him just getting a license a u s coast guard license in early two thousand and two well that's a little like saying i'm more qualified than gerry spence to argue this case because i have a washington license that he only has a license and wyoming and california new york well it's the fishing that counts and if you've been fishing and norway and russia for the same kind of fish as only one was he was the master on the world's most sophisticated factory license before you got hired by american sea troops the other evidence of nondiscrimination is very strong as well mr andreas and appointed barry fitzpatrick this captain another american has renounced his norwegian citizenship which is again also some evidence of nondiscrimination against americans but to use within that class he certainly within that class and again this goes to the issue of whether you know a rational trier of fact co only not and had never plied these waters as the captain of a u s flagged vessel or a captain of any other vessel council just gave you his closing argument at trial he's asking you to weigh the evidence he's asking you to draw inferences in favor of the moving party and against the nonmoving party that's not the test today the test today is to coughlan present specific and substantial evidence injuries and preferred individuals of norwegian national origin when he made the decisions affecting james coglan evidence we talked about earlier the evidence that is presented in our br provides that specific and substantial evidence and is more than ample to overcome summary judgment this is a case where you can tell there are disputed facts we're not saying that there are no disputed facts we're not here asking for summary judgment we're here asking for this case to be remanded so all of these factual issues so all of the credibility issues for all of this very complicated case to be presented fully in front of a jury so that the jury can see the witnesses the jury can weigh the evidence the jury can draw the inference as in the jury can make the factual findings that are necessary to decide this case the district court put itself in the place of the jury in making all of those decisions and disregarding mr coughlan's evidence and drawing inferences against him and then applying the same actor this inference as a mandatory presumption