basically gives federal courts jurisdiction for suits regarding violation of contracts between employers and labor organizations so if you're stupid alleges a violation of a labor contract and you're going to be preempted however it does not inconsistent with can't to interpret this overly broadly so where you have factual questions that run parallel like you have a state  it's based in state law and not in the c v a and the factual issues run parallel with the same kinds of facts that would be relevant to just a final breach of contract action that does not permit preemption of the state law action council i think the real question is whether they are in extra completely intertwined so could you address why would you not have to rely on the interpreting certain provisions of the collective bargaining agreement in order to prove mr johnson's an employment discrimination case or retaliation ok isn't can't generally you're having to prove intent so basically rule is that employers conduct motivation  not they're factual issues and they don't require interpretation c p a and there's a there's a doctrine called the good faith honest belief doctrine which kind of i think really addresses this and it's normally something that trips up a point in these employment discrimination cases because the issue in discrimination case is not necessarily good the point if you actually violate the rule that he's accused of violating and it's not even  prove a discrimination case certainly well i mean one of the problems there is the employer's legitimate expectations of the employee how do you do then analysis without looking at the collective bargaining agreement here well the  thing is is that the only way in which the district court found that my client was not meeting the employer's legitimate torrie legitimate expectations was in reference to the legitimate nondiscriminatory reason off now suing to davenport versus review garden school district you can't do that you're conflating the prime aphasia case with the pretext element of a mcdonald's portion of a mcdonnell douglas case when you look at the qualification element in the prime aphasia case of mcdonnell douglas what you look at is whether or not the employer's meeting employees meeting normal expectations without reference to that legitimate knowledge for a reason and that you look in the body of the point where you have to get those facts wrong and basically my client was employed successfully with them for years until he was finally terminated and the only grounds that is being discussed by anybody on either side of this case for the terminations is this issue of you know free for all in freight which constituted extreme the serious misconduct and violated the just cause so the reason you don't have to interpret it that you don't get to that issue and once in just cause they can't is still the issue whether it's discrimination or retaliation and they have stated issues of lawyers and can't and the actions of an employer are fact issue not know they're going to have an argument that he can't really dispute that anymore because of  others engaged in an illegal sit in they could still bring discrimination so you don't have to interpret c v a because back to play that arbitration binding is going to mean that he can't burden shifting framework and you get to that final step where you're looking at compare it to words how did the added did the company treat compared tours in the same situation more favorably then they've done with mr johnson now that's step aren't you going to have to make reference no isn't reference to the collective bargaining agreement required because you're going to have to we're going to have to decide whether compared tours have committed these serious under the contract these i can't remember the terminology but the particularly serious or extremely serious or whatever under the contracts i don't see one way or another d once again making reference to the to the c b i once again we get back to the rather fine distinction but it's still a distinction that courts have been making under these provisions allow discrimination employee did what they believed was a violation serious thing and so what we can do is for instance look at people that they have terminated for conduct they describe in their own words as extremely serious and then see if there are other people who are caucasian who didn't get terminated for that same type of misconduct and it doesn't require a look at the c p a bars a look at the facts of what they've done to other well if they were choir's i look at the c because you're bringing in this term extreme extremely serious misconduct well that's a that's a term under the but it's approved of the correct approach to it it's a it's a peripheral tangential involvement which is what the employees that's what you're asking them to do what you're looking at is not what the terms of the c b a mains but what they've actually done  douglas is substantially dependent on the c b i and analysis of any defenses that the company may have is on actually unnecessary to this position of this case because c b l a analysis is required and places before we even get there and that's what i'd like to focus my time on that i think there are three points i'd make in rebuttal to mr gillum number one the fundamental factual allegation in this case mr johnson claims his actions his actions in dumping this freight free falling this phrase he terms it off the back of a trailer and leaving it damaged on the ground which of course what he was fired for at those actions were in accordance with company policy at all times those are his allegations in the light we can evaluate the merit of his discrimination claim without deciding whether he's right or wrong about that and there's no way to do that without substantially interprete ing his collective bargaining agreement and as we pointed out in our brief myriad provisions in the c b s inform that assertion in his complaint well but if it is can just as concede that it was wrong it was misconduct this is serious this term serious serious misconduct or whatever the term is offensive extreme or serious and yeah listen just same media as if he's treated differently than similarly situated employees who you know the of the sign or similar misconduct he can still and he still go forward no your honor for a few reasons number one he's he's not admitting that what he did was misconduct the entire allegation that the central rust of his case is that he did not engage in this conduct that he was authorized to dump this freight over the back of the trailer and the only way to answer that question was he authorized was he not authorized is to look to the collective bargaining agreement that's the only place we're going to find the answer and we explained this in detail i'll just cite a few provisions this morning article nine of the s says that bargaining unit members are not liable for loss or damage which happened here in less they act without justification or mitigation and violated stablish rules procedures or policies that's what we say did but there are other examples in the c b i that they could mitigate that could be mitigation for example article fifteen section one he claimed that his lift gate on the back of his truck was broken the company's obligated to provide him with a vehicle that is in a quote safe operating condition of his broken liftgate violates that provision he might have a mitigating circumstance now is it i don't know he didn't allege that he had trouble making other deliveries that day but that provision in the contract speaks to his liftgate another one also section two of article fifteen says that he can't be required to quote engage in any activity involving dangerous conditions of work so the question there would be how is he supposed to get the freight from the top of the allegedly broken lift gate down to the ground if the lift gate didn't work dumping it off was one way that's what he did are there others was a two having to carry down could maybe he have broken down the pallets and hand carried them down the point is not to try to answer any questions right the point is it merely asking them plainly shows that sorting through his claim can't be done without in depth substantial c v a analysis and that's before we even get to the  company looked at all this and decided that there was no mitigating circumstances that he had engaged in what article six of the contract calls an offense of extreme seriousness that's a lot more than saying we had just cause to discharge  simply a just cause case we have demonstrated that c v a analysis is required of all steps of the analysis and i would say that this discussion we're having now i haven't even gotten to his prime aphasia case yet we're just talking about the central factual allegation is complaint he was authorized to do what he did we can't even decide whether that's right or wrong without looking to the c p a the next step which is my nd point today would be to say that as an adult we can evaluate the elements of his  mcdonnell douglas without construing the c b s and as we showed in our brief at least it with respect to the race case there are least two elements in his in his prima facia case that would require c b a analysis one is that he's qualif for his position and i would say in response to what mr gilman said this morning we're not collapsing elements of mcdonnell douglas we're doing exactly what the court did involve and there is evidence i think it's i think everyone can agree that there can be evidence in a case that's relevant to more than one step in the analysis and so our position is that we can't possibly be meeting the company's legitimate expectations if he intentionally damages customer product as we've just been discussing the only way to decide whether what he did was or was not appropriate or not was by reference to the c b s a and if it's not there's no way he can meet the company's legitimate expectations that's the analysis the court performed in balt when it was deciding whether the plaintiff there was fit for duty under the that employer's rules it's also the analysis that was performed by the district is that there is an inference of discrimination again we're here on a donald douglas analysis many of the cases cited in mr johnson's brief are direct evidence cases and if you have direct evidence of discriminatory motive you may not have to look at the c v a but here he doesn't here we're proceeding under the circumstantial framework of mcdonnell douglas and that's a completely different case i would submit as the court recognized in fault and so if we get to the inference of discrimination element he claims mr johnson claims that an unnamed white driver engaged in misconduct at the same store he claims that the driver told the company that the store was closed when it wasn't and this resulted in the store being billed fraudulently and this was worse misconduct in mr johnson's mind and this individual wasn't disciplined well there's no way to determine whether this individual is similarly situated under mcdonnell douglas of st of all he doesn't say whether they're even in the same driver classification there's all kinds of drivers peter drivers package drivers combination drivers all these positions are stablished by the c b s we have to look there just to determine if they even work in the same job but then whether the white drivers actions constitute on his part an offensive extreme seriousness is a is a question we can't answer without looking at the c b i and if his actions didn't constitute an offense of extreme seriousness how can we be a valid comparison and then we can go even one level deeper than that because even if his actions did article six of the contract requires that the company issue discipline within ten days of learning about the alleged offense so if the company didn't find out about what this white driver did until eleven days after he did it it may not have been contractually justified in disciplining him and then the disk the disparate treatment he allegedly disparate treatment wouldn't be for a discriminatory reason again this entire discussion is founded on the idea that we can't even answer any of these questions without significant c v a analysis and that's the main distinction between this case and the just cause cases but i would make one other point on the thirty one analysis and that is that the notion of whether mr johnson committed an offense of extreme serious and having to engage in that analysis it's not a defense defense in the way that legal and mire in humphrey in those cases lies for several reasons number one as we've already discussed whether mr johnson committed an offense of extreme seriousness or not is relevant to several elements of his prime aphasia case so right there we're not discussing this concept in the context of a defense but secondly the analysis is also relevant at step two of the mcdonnell douglas framework for these for these claims and i would suggest to the court that the mcdonnell douglas framework is not a defense it is an evidentiary construct used in discrimination cases where there is no direct evidence of discrimination and i would note that while the employer at the nd step of mcdonnell douglas bears the burden of production the burden of persuasion and mcdonnell douglas rust at all times with the plaintiff the case isn't over at the nd step of the mcdonnell douglas analysis so if the employer's legitimate nondiscriminatory reason for taking the adverse action is that he committed an offense of extreme seriousness that's not a defense to liability and that's and that makes this analysis very different from the cases where the employer all they had to argue in favor of preemption was well we had just cause under the contract and therefore preemption lies this this case overflows with additional reasons why you can't decide it without consulting the collective bargaining agreement i've make a few other points with my remaining time and as mr gill noted there were several alternatives grounds for dismissal that we noted in our papers that the district court didn't decide and i would simply note that even if the court were to determine that the case is back to state court they settled that the part of the case against miss on freeze and so there's now complete diversity of the parties so even if the case isn't preempted by section three hundred and one it's going to stay in federal court and so the court can address these additional defenses st and foremost garman preemption like section three a one garment is intended to achieve uniformity in the administration of labor management relations and so under the garment doctrine  activities arguably subject not definitely subject arguably subject to section seven or section eight of the national labor relations act the courts have to defer to the exclusive competence of the n l r b and on this on this point i think protected activity under section seven of of the national labor relations act that's the exact same thing we're dealing with here mr johnson filed numerous grievances over the course of the two years preceding his discharge fifty seven to be exact that's three four a week if we're if we're keeping score of three four a month i'm sorry but he alleged numerous things in those grievances including the right to be free from racial discrimination now filing those say to this court i was retaliated against and discharged because of race discrimination when it's clear the complaints he's referring to are one and the same there is grievances is terminations grievance he said he was terminated quote in violation of article twenty eight a freight quoting gauged an ongoing disparate treatment of its african american employees and he was subjected to quote retaliation for past grievances and labor charges those allegations are indistinguishable from the allegations that his lawsuit is complaint allegation says he was terminated because he was quote black and opposed racial discrimination and quote participated in a protected activity then he goes to the n l r b and says he was terminated quote in retaliation for his union and protected concerted activities as protected activities grievances to contest his discharge and this court noted that and i'll quote it's highly relevant that plat unsuccessfully sought relief through the grievance process and directly from the n l r b before bringing this lawsuit that's exactly what we have here mr johnson filed grievances the contempt as intense as terminations he lost he went to the n l r b and filed the same claim he lost now he's here asking the court to give him one more chance for all the reasons that we discussed this morning and in our briefing papers we don't think he's demonstrated that he can get that chance we think the case granted in the court should affirm the district court there's no other question thank what we've got left here is a race discrimination like a retaliation or blood b perhaps a legitimate argument to be raised if we were dealing with retaliating claim but this is a race  it doesn't depend on the complaints at all you know if you look at the case that they're citing you know it talks about alleging that he was discharged for making safety points are such safety  clearly recognize that you can have a case where there are multiple motivation for the discriminatory ass so that you can have a legitimate purpose still illegal if it was a subst rice substantial or motivating factor back in the race discrimination claim you don't even have to prove it's a determining or but for factory just have to prove that it's a motivating substantial back then they have prove not coming back so my client can't have it both ways to be out now going to the issue of boat one thing about that that was an  accommodation so what you're looking at options and you know the central job functions like it was by the order of things like that i think the analysis goal is different