for ninety nine and five sixty one and sixty four settle that question if you want to look at it simply that way because they do provide census forms for the individuals to fill out no census forms on one case show the individual indicating she was hispanic and in the other show the gentleman indicating he was black i don't necessarily agree that's a form of self identification that may be kept for for for various purposes the question is how the employer would have viewed them realistically you leak repeatedly asked and repeatedly insisted that she spanish that's all i know she is that's accurate because that's what she indicated she was she indicated she was spanish this court determined that previously was was black and she was and she was she was of a different race that's the issue and that's the same exact issues and judge will here was on that panel and burrell of that was the exact issue decided in that case  event taking the facts most favorably of the plaintiff which is al you must take it not most favorably to their construction after a cases brought of the facts the facts so that she miss were burning expressly said to my client after he made inquiry about the tanks you're stupid which is something she had repeatedly said to him he had brought to the supervises attention given doesn't have to do with this situation it has to do history of your client having anger problem no that that that again is a view of the record which is a totally one sided view the view the better view of the record and want to jury could accept there are two important salient points one for five years previous to this two thousand and eight to two thousand and thirteen she was there three or she had more disciplinary problems in that period than he did second of all if the issue of the zero a policy with regard to workplace violence was true what were hers she had an issue as it's written up in october eighteenth two thousand and thirteen known to gallus earlier of a dispute with a nurse in which she had apparently lost a temper and behaved intemperately that's in the record she had other issues of not responding properly to emergency situations in the system and there are only two disciplinary records for her in the three year one from two thousand and eleven through two thousand and fourteen fifteen one a verbal warning want to written when there were three including this one  different disciplinary histories why is she similarly situated enough to be appropriate to pick under graham the similarly situated requirements are these they are subject to the dame same disciplinary regimen and standards which is clearly true here they have the same supervisory structure which is clearly true here so that and and you then have to look at their conduct the employer here through gals who i believe is the principle decision maker explicitly states that when you have remote in time incidents they ought not to be considered that is a substantive principle adopted by the employer that wasn't what i said that was her testimony if that be true in applied that's one side of it the other side of it is if you have a person judge who has twenty disciplinary infractions in the in the fifteen years of the first fifteen of the twenty years and they never terminate him they never do anything about it even  think you use the term anger management problem or judge calibers use that term one must and a jury could very easily say as he said most of these things even never happened they weren't taken seriously by the company the company acted in a totally inconsistent matter with the belief that they were serious there weren't several there were about fifteen so if you argue a case to a jury what you say to a jury totally plausibly is you know we understand that's the history but you i think the problem with all these cases and i've as you know we're good many of them is we have a certain set of principles as to how you're supposed to take the evidence how you're not supposed to take the evidence you're supposed to identify and not decide issues that's one of our maxims but repeatedly in these cases that's not what's done at the district court level here the question is could a reasonable jury seeing that history reach look conclusion that these matters were not seriously considered by the company as major issues because had been the man would have been terminated a long time ago if you have a zero violence policy in the workplace i'm not disputing that policy i'm saying if you really had that policy and you really believe that was what the man was doing you would have gotten rid of them you w there is your honor points out a relatively short period of time and that period of time as her own supervisor wrote the next month she had serious issues with professionalism i think got a twofold call that's very different from anger issues you know that's why it's hard to her if all of her problems were anger problems then i could see your argument more somebody is disciplined for spelling wrong that's not it and then gets into an argument and i'm not saying it was it was somebody who has been disciplined repeatedly for getting angry and shouting and doing things the two are different things i think that they are different things but here what actually occurred just again so we are trying to stay as close to the facts as the record allows taking the facts most favorably to the nonmoving party which is the when you talk about an anger management problem it's plainly manifest by her behavior the company one could argue to a jury reasonably had information from him that she repeatedly pointed him at work and did not take that seriously through gasp who happens to be hispanic now could he does a jury have to decide that the behavior she's manifesting toward him and being condoned by the company indicates racial bias they may not have to conclude that but they conclude that and they could conclude that this whole history of his was not significant to the company because for the five prior years there'd been no instances like this and he had fact markedly changed they could conclude that based on this record so the trotting out of the history i'm not arguing that it would be irrelevant not filing a motion in limine a to say to them you can't bring it into the trial i actually want them to bring it into the trial because i think it goes to the pretext issue thank you thank you you've reserved circuit i'm surprised that i'm here because this is not a closed case it's very rare that you get a situation where the plaintiff doesn't make out a prima facie case in the court almost always looks to the next set of fact as in this case this the de minimus burden of satisfying a couple of different ways you can do that one way is that you have a comparative somebody who is similarly situated to you that was treated differently in this case the complaint in five different places alleges that mr just thought the point of was treated differently than a non black technician they didn't know what that she was treated differently than somebody who is hispanic the whole basis of the complaint five different allegations is that he was black and she was not black the facts are very clear that feelings i've just seen this in my law school i tried to find out how many people of different ethnic groups were in the entering class and i was told that there are many people who are mixed in city mixed if somebody says hispanic bed trumps everything else and nothing else is although it's bizarre but that's really where the government is doing it so if the government does that it is not panic for ninety nine she was herself as hispanic and then in paris parent that eclipses regardless of race if you were to check what the african american box it says not a person of hispanic descent so she testified that you know i'm not saying she did anything wrong it is this very peculiar governmental feeling that for reasons i don't understand says if you are hispanic that is it and you can't say  take it that you are referring to the motion for sanctions that was denied because you think that these this claim is frivolous but but the allegation was that at least he viewed the compar as something other than himself something racially other than black that is that is that that's not the legend the complaint nor did he more frivolous than vis one i must say i found the motion for sanctions to be close to frivolous to say that because a previous lawyer didn't think there was a case with this lawyer can't think that there's a case to say that she cannot be viewed by this person as a comparative because he says well you don't think she's of the same reeses mind when there are some things of this sort it may be a looser but to say it's ridiculous is extraordinary so you know you're right i don't have i have very little problem of the merits of a case but i must say i had real problems with the bringing of a motion to say but you have to withdraw your appeal or the motion for sanctions and i want to yes if this court that an attorney of the firms stood up in open court and said this was not a race case but the district court itself indicated that rule levin was it was a close case that it was a difficult decision to make and if you look at what the district court found there were a number of things that the court said the case was a close one and it's entirely without merit that s and w manufactured this is judge caresses words a dispute about washington's race that didn't exist that as w s opposition was poorly reasoned that some judicial resources were wasted by the conduct appointed counsel in failing to notice the patterson for deposition that s and w misrepresented facts of the court in its letter submissions that essence of these actions compelled defense counsel to appear at a court conference with the sole purpose of the court litigation in the court made a number of findings in that regard you know that said that there was a conference that they need to happen that point to scalpel use hyperbolic statements and in his papers that took a pot shot a council that was inappropriate which he also did again in the appeal will him for sanctions is because of it's your opposing counsel to be a viewer to the district court then i take it the district court can handle really very well so i have a problem on both counts if what you're complaining about is the nature of the suit in the first instance as frivolous that we would able to look over what the district court did and there i think your position is weak to put it mildly and if instead we issue is how he behaved at the district court how can you possibly appeal that when the district court said that is were you know i'm not going to give sanctions for you on it is it is a matter of discretion i don't agree i don't disagree with that but the district court made a series of findings some of which i just read to you that testimony and by her appearance and the fact that she's also hispanic is not relevant because that wasn't the pleadings in the case furthermore they are not simply situated which is one of the standards for the prima fascia case because of the vast disparity in the disciplinary record  fourteen of the disciplinary instances that might have had were of the type that were argumentative and aggressive the same thing that he was fired for counsel could have shown other evidence of discrimination that there were no comments or documents or anything that supported that that either so there's no permit for she case here which is you know unusual in these cases even assuming there was the defendant articulated a very legitimate business reason for the terminations mr design got into an egre situation with another coworker late in the evening where he became aggressive now he also argues there's a dispute in the facts about what happened that that evening but that's not really the issue because there were three people there the company conducted an investigation and the investigation was a sound investigation even the plight of doesn't agree with that but as i'm shown that it was an unfair investigation here everybody in the incident was spoken to twice by a combination of three different supervisors that there was no fifteen different employees complained about him so this is really no question that that they probably did an investigation and they also were white on a record that was replete with with similar type of conduct was no showing a pretext at all here by  i think this case is governed by johnson versus c h energy group i think that the facts in that case which is a two thousand and one case by the the circuit are are almost the same here and it goes to the point the judge raised earlier which is this a company makes claims about what it did and what it believes the question is whether on a motion for summary judgment a district court under reeves is allowed i'll go as far as say aloud to accept that version of events as the compelling version of events war or is it up to a jury to determine whether the assertions they make to the district court are or are not credible this is exactly that case structurally because here the assertions they're making are as you just heard the prior disciplinary is relevant to our decision here that's contrary to what the one of the principal decision makers indicated which is ancient events not considered he was on no discipline at that time there progressive discipline he was on none of the progressive steps he was in on a verbal counseling he was an unwritten warning he was nowhere on the scale she was more on the scale then you get to the event itself and you have to focus on the event itself isn't johnson what went on as an african american wasn't promoted the company said he wasn't promoted because he went out for alliance men's house and he took his gloves off and we have evidence he took his gloves off we did an investigation and that's what they said they off he said i didn't take my glove off this court said the fact that the company believed your claims they believe he took his gloves off in light of his denial and the assertion by the testers that he did creates an issue a fact that's exactly what we have here he says she was the aggressor she agrees to calling him stupid not only then but on previous occasions it's not the night that he she said i'm going to punch you he didn't make any statements like that at the time so council gets up and says indisputably he's the aggressor that's not true on his version of events he's not the aggressor so to say she's going to be he's going to be terminated for being the aggressor and that's court he quotes i assume a member of your firm as as the judge says when the court press council as to whether this case was still a race case plaintiff's coun responded on the facts that i've learned i don't know in the last weeks of the sky every year he did say that he was wrong he was fired but you're right he did say that there's no question he said that to the court it's in the transcript and and he was an inexperienced lawyer he went to the case he got he got someone intimidated by the district court not not any fault of the district courts and he did say that and that's of no relevance i don't believe it's of any relevance the district court itself said it was  this footnote in the sanctions decision in the sanctions decision no i don't think it's of any relevance because the look the facts of the case respectfully of the facts of the case what this lawyer this inexperienced lawyer thought the facts might have been didn't understand exactly was his experience i mean you're hard on him i did hire him he was an expert in experienced attorney he went to the conference and he had not done race cases before and he did not properly represent the crown you don't you do these cases regularly a you hired him i did i agree with all that i did fire him and i do the cases regularly and it was an error on my part but that doesn't mean the case should have been dismissed on summary judgment that's the question that one doesn't follow from the other i did make an error but it wasn't that error thank you thank you