arguing employment discrimination cases in this court for forty years and i've never looked forward to an oral argument more it's an exciting time to argue a discrimination case in this court because it's now clear that you don't need the mcdonnell douglas paradigm you don't need a convincing mosaic whatever that is you don't need an identical male comparison or in a sex discrimination case the interesting part is where do we go when we leave all these required paradigms behind we go one thing for sure and that's that it's going to be an interesting journey i think this case shows maybe one place that we're going to be going in proving discrimination cases now that we are much freer than we have been in the past to look at the evidence and follow it wherever it goes we know from the statistical evidence in this case that dodge correctional fits the statistical pattern of the whole department of corrections in the department as a whole over the five year period roughly  terminated because she said that the box hit or when it didn't and so too when you have to do so i guess i got a theory that other correctional officers who were found to have lied in such here we go in the department as a whole they terminated six percent of the females and three percent of the males dodge they terminated four percent of the females and two percent of that many males what that tells us is that either across the entire system and at women officers are misbehaving worse than men officers or if that's not true and misbehavior is equal there's a big group of terminated women out there half of them who would not have been terminated if they were men now if we know that there is that group out there we have to ask then does the plaintiff have evidence from which she can prove to a jury that she's in that group could a jury find from for to screen disciplinary record and the relative unimportance of her mistake that she's in that statistical slice of terminated females who would not have been terminated if they were men i think we should show that a jury could find that she is in that group in two ways one is yet while the testimony the former secretary of the department who says that looking at her clean disciplinary record and looking at the gravity of the misconduct of which she was accused terminations would not be the expected result  but that tells us you know that if she had been a male officer she probably wouldn't have been terminated that's quite a leap cancel the mr walls testimony that interesting feature in this case but frankly it prompted me to think this might be one of those cases where repeated warnings were not acting as a super personnel department really filming to play misconduct leading to prisoner discipline another commissioner has a different policy why is that evidence of discrimination those cases that talk about courts acting as super personnel agencies or departments mean that it's not illegal to make an i'm wise decision or it's not illegal to make a nonstandard decision that's essentially arbitrary but the fact that a decision is a substantial deviation from the ordinary criteria that an employer uses in making terminations decisions can be evidence of discrimination idea how many cases we see involving violence in the use of force by prisoners against other prisoners or by guards d against prisoners where from the open day in the wal mart break with this this was a small lightweight empty paper box that had no chance of hurting consequences for throwing the box the fact that he missed her didn't seen him for many disciplinary consequences if he was a hitter he would have gotten exactly the same consequences as he got it was never going to be an assault because there was never any number of i think about a dozen individual defendants under one hundred and eighty three here where in the decision making process do you think such discrimination occurred i wasn't just one person reacting it went through the normal chain of command and it seems to me that that weighs a lot in favor of what the prison decided to do it is also the same process the resultant women officers getting terminated at twice the rate of males both at dodge and throughout the system we're talking about one case here well we are entitled to look at the pattern across the system you have one minute before you're in here thank you we also think that the evidence of other male officers who engaged in acts of dishonesty and we're not district court correctly held that the wisconsin department of corrections had a legitimate nondiscriminatory reason to forgo lesser forms of discipline and instead terminate the separate to his employment specifically produce filed a report falsely accusing an inmate of assaulting her which violated an important work rule in british or employers trust nd or two is evidence when considered in the light most favorable to her and as a whole could not lead a reasonable jury to conclude that the d l c discriminated against her because of her sex in the district court of properly considered all the evidence as a whole and rejected for two claims for these two main reasons the court should affirm the district court's judgment asking itself why was it ok to terminate her employment rather than discipline her in another way and i think there are three main reasons st to she lied about or made a serious misstatement about an inmate in a contacts or telling the truth is so very important her colleagues insecurities need to be able to trust her in that prison setting and she cannot effectively do her job with colleagues and inmates think she is dishonest so she damage your reputation for truthfulness about a nd lying or telling the statement about an inmate's conduct is much different than making a statement about your own conduct for example why you were late to work a light and show up one day per misstatement could have directly impacted that her going directly to her sergeant and saying i have been assaulted when you watch that video there was no assault nd we know from the record and specifically on a site the court to docket entry twenty at paragraph six ward convicted internally of assault would be that he would end up in a maximum security prison which is a very serious consequence for him and in fact immediately after the assault occurred he was transferred to segregation that was before the conduct report was written up with rd point i was about to make which is that the consequences for roddick were potentially quite serious the record reflects again that one pollard's declaration in the case explained that he would have been potentially subject to be employee disrespect disruptive conduct and disobeying orders and you're convicted of disrespect and destructive conduct but the fact that he was even charged with assault resulted in pursuant to the o c policy an investigation being initiated by the dash county sheriff's office so again the serious misstatements in this context resulted in a waste of resources in potential serious county serious consequences for this the facts here there is no question that this was a violation of a work rule and that one of the consequences of that potential violation was terminations and that was discretionary determination that peterson however i also agree with judge peterson's analysis that the statistics don't tie anything specifically to this case and i think the way that judge pearson talked about it was that page nine of his decision he said that evidence from that statistical evidence another piece of evidence that bridges the gap to an inference unlawful discrimination and there was no such evidence here the examples that the pla similarly situated individual simply did not bridge that gap and the plaintiff in fact disavowed any reliance upon similarly situated as a legal test or standard said that he wasn't she was not doing that  judgment stage and the examples that she relied upon and for summary judgment briefing and then the multitude of examples that she tried to rely upon in their briefing here are not similarly situated they have individuals with different supervisors at different institutions and with regard to the particular conduct that was at issue of we don't even know the details of that conduct to be able to draw a comparison and the key comparison that would need to be drawn here is that it was  good it's crucial that we can trust prison guards we can trust what they're saying about inmates because their job is difficult enough the way it is if you have a prison guard cannot be trusted either by colleagues who disappears or by the that is going to be a terrible situation in a prison  turning to i'd like to talk a little bit about walls testimony you know the court i think hit the nail on the head when it said that it would be playing super personnel department if it gave much weight to mr wall theft a moment in this case mr wall did not in any point in his report say that he believed that there could we could draw an inference of gender discrimination he was simply saying that he thought well maybe something else is in play which is really the heigh bodily harm there was a legal mistake not a misrepresentation of chance there was no criminal investigation dodge  relayed something about this incident to the dodge county sheriff's department and the record is silent to indicate that they ever did anything at all with that information i think probably didn't cause if they had we'd probably be hearing about it and have to similarly situated compare it to ours we've never said that we have one single male employee who was so identical to mr two in terms of  his position in the organization and what he was accused of that we can prove our case just by one single comparison but we have said that when you look at these other cases you can discern the standard that the department applied in terminating people and at stanford as mr while says would not have been expected to result in a terminations in the case of fact that we submitted to the district court and to any of those or involve people who were found to have been dishonest in the misconduct yeah we played out in our dishonesty about something that didn't in maine get but we don't have any of that underlying evidence available no we don't we don't have any more than for evidence then the terminations panel in the central office h d and you know when the department says it's so important that this particularly mistaken statement was about an inmate's conduct the jury could decide that on page three and in these computer tours if the subject matter of the false statement was so important you'd think it be in here so that the panel making this decision could have known what it was but it's in for only one of these three compare tours why don't them just talks about fail to provide truthful information on an incident report and during central office i use that as a shorthand term for the yeah management advisory team on not dockets thirty two dollars iphone five which is a disciplinary action routing slip it shows the path of this recommendation for terminations all the way up the ladder and the management advisory team is one of the steps in at path they're the ones for whom carry buyer compared this list of compare our tours with no