is my privilege to represent the appellant dr bennett pretty mean this appeal there are several issues on which i plan to primarily focus this morning the st issue is the district court's abuse of discretion in finding that c b was not a similarly matter the fact is that we have met all the elements of the standard articulated in some others another case law of this court essentially that my client was treated differently than other sim a much more senior management position and the potential comparator only in name their honor you'll see from the record that my client in fact was demoted several months before these incidents arose and he in fact was only a research advisor at the time and it is acting center her that's correct but his title his actual role as research advisor your honor and the issue is not the title that he held but the fact that organization like the alliance and the center up in boulder there's lots of lots of decisions that are maybe if if if there's one comparative in a fairly large d organization is that  already is there any kind of a requirement for for more than just eleven dollars decision that seems to be different than others i appreciate the question your honor i see nothing in the case law indicates anything w against the caucasian manager cannot go on notice in this case both involved text messaging with female employees of the company in the case of the caucasian manager that female employee d was a direct point the fact is that alliance has admitted that both the compared or and dr pretty him were both subject to the same standards they were both considered executive management policy among others that alliance maintains that both individuals violated was the executive management policy so there is no distinction in terms of alliances own policies and the applicability to these two sets of conduct that turns on whether one was a good acting senator record versus a manager  going back to your st point your honor as much as a lion some district court have attempted to link these two matters the fact is there is no such link because when you look at the  matter what you'll see is that the supervisor who spoke with my client wants or as conceded that this was really just an informal discussion and he made a recommendation that my client keep in mind the sensitivities  so say with this position is actually center director research advisor but the only warning that was given to him was to not discuss the matter with this individual who was not his female subordinate the fact that there would d one was the director and one was that's correct two were disciplined by the same group of decision makers including at least three overlapping individuals in this case and again i w company you know here you have a situation and maybe the you know the st incident happens and you know there's you know limited discipline whatever and then the company says you know them the nd then your client comes along and the company concludes you know maybe we blew it with the st one we we were too lenient you know that's not that's not what you know the standards  organization and you know white white white can't be organization and more or less a you know this is the nd time we let the st person off too easily we're going have a tougher standard you know  there's nothing in there that would suggest it's match awards in your race or religious discrimination well you're right i bet respectfully disagree with that when you look at the two sets of circumstances i think judge ito hit it on the head  been no testimony to the effect that yours suggesting your honor in that regard and i think that given the fact that my client was not afforded any of the remedial opportunities that the caucasian manager was afforded including the ability to read a draft of the of the proposed discipline to make changes to it to form a rebuttal to it to receive additional training by alliance before  going forward and i would know that alliance certainly didn't seem to have reconsidered its position when it later hired the caucasian manager into a higher position at the company so i don't think there's anything there in terms of nd thoughts in terms of how they handled the st situation the combinations that were afforded d to the caucasian measure were far more significant really there was nothing relating to my client with the st situation other than just simply he was told to forget it and to move on and so there really is no link between these two situations and any attempts by alliance to claim that that's the difference between the two situations is without merit i would also note just for the that manager in fact was not furnished with the final disciplinary letter and tell for oxley six weeks after he had been reinstated and during that six weeks time his female subordinate complained that he had in fact retaliated b was told it was was was war and then the other passage was in the deposition testimony and in that deposition testimony it was referring to acts of retaliation that he preceded the complaint that it comey and so i did not see any evidence that you presented that there were acts of brutality ation after receiving a had been discipline germination notice itself merely references the fact of these two what they call formal complaints but there is there are no factual references in here as to what findings alliance came up with what information they considered and there certainly was some confusion that alliance admits to in the record regarding what in fact actually happened they only had a partial collection d of the text messages that issue with the non subordinate there was confusions created by another caucasian manager who claimed that my client had asked out the noun subordinate on a date to dinner which in fact was not the case there is no reference to what the alleged verbal warning included it with the coaching included the big picture here is that there really is no basis from which my client could reasonably challenge the termination decision in part because there is no information in the termination notice itself there is no documentation is there any prior warning and the fact is that this company which is dominated by caucasian management made the termination decision behind closed d doors under the cloak of privilege by including their general counsel in the decision making process in other words under the nd prong of the mcdonnell douglas framework my client has not been given any realistic opportunity to be able to challenge or rebut the inference of discrimination because the defendant's explanation of its her st because my client is in the minority and he was otherwise qualified for his position under perry in other cases the fact that his his job responsibilities were not eliminated and he is that minority would at least fact create an issue in terms of prima facie case that this may have had something to do with with religion national origin other factors without d seeing the information direct comparison with the caucasian manager and the being simply scituate obviously is a much more direct stronger claim but since we've never been left behind the curtain to know what it was that is decision makers actually considered do know that there are three on that must be met within the th circuit in terms of whether or not they compared our is similarly situated in this case we only dispute whether to whether stevie was actually  his claim that i did something inappropriate that there's some sensitivities about it you know you're a senator rector she's an admin just remember there are certain sensitivities about you are free in a rental car yes your choice movie even if friends because you're a center director mad that by itself is a warning later on dr e ram also specifically got into issues of what he needed to do going forward and one of the things that he needed to do was that he was told not to it a coaching or a warning doesn't matter he was told not to do it significantly for the purposes of the comparison to see be note that the warning that he was given for that conduct the conduct  inappropriate comment and you know at a cocktail party from you know somebody you know from halfway around the world yeah i think the context is extremely important in both instances dr even younger women made comments to them that could be perceived as though that he were making advances toward him and he made them uncomfortable and resulted in complaints the complaints of course are objective they took place both in each case two women had concerns with the way that he raised top obviously with miss newell question about going to the movies and having around car payment with miss wood it was a question refrain her body language i have that she exhibited and that it must be difficult to be an attractive young female was warned about was extraordinarily agree just so i think all of us would agree with least i guess what i think and i think by your own coming just a moment ago the st incident with this dual was a earth shattering see who did not engage in a nd incident according to your argument contrary to your bread as are you but that assuming that he only had one incident but it was horrible i mean let's say he did something you  distinction that we still have here the doctor here he refused to acknowledge that he had done anything wrong so to be on the bottom of the document he says this is all that were created this was done to this amp i do disagree with reservations by warning and more importantly the testimony is an rebutted from alliance of thirty six deposition where they said that he accepted responsibility for what he did he owned up to his mistake and he wanted to do  he could possibly do not to not to have that same mistake and again and so because that testimony is a rebuttal there's nothing else suggests he beat it anything after this because of that situation and we know that is a very different situation newell and he did with ms what because he has told us that it is under spewed that he has continued to persist in his belief that what he did was perfectly appropriate and it wasn't he failed to recognize the impact is this decision which is if the company really you know thought this was the st instance was a serious infraction why wasn't there any kind of written warning put in into his file and i don't believe the record directly addresses this issue but i believe it's fair for us to interpret from what we do have is the reason there wasn't a written warning based upon the incident with miss nor is it wasn't serious enough to warrant the warning with missed it was the fact that there was the nd incident that took place only two weeks after he had been warned than what c b s that it justified him being fired and c b the discipline i would suggest is more than just looking at the seriousness i think it doesn't come down to what is there different levels of authority within and the woman at issue in that instance are actually mutual and in fact sometimes the woman in that case was fourteen on her own text messages in that regard and so you have to take into account the fact that the circumstances and the facts are different in this actions in addition i'd like to address it must any of the judges like to continue talking at some research about it i do think it's really important for us to also recognize that we've never had a disputed issue at any point in this proceeding going all the way back to when the have never questioned whatsoever what his subjective intent was that's not an issue for the alliance to get to get into what alliance always had a concern about was the objective impact that his actions had on two women who separately raised complaints the and then finally i think it's important for us also recognize that this goes to some of the questions are asked the evidence in this case is completely moronic anything would like to pay for the rental car and if you'd like to go to the movies that also would have raised certain sensitivities that we've talked about and so because of that the other three claims never had any supportin investigation i would also refer the court to volume three page five hundred and thirty in which it references the fact that multiple six employees said that they had heard c b joking about sexual subject testifying a fact for things that c b never referred to one other final point the court asked a question about whether my client was allowed to essentially cross examine these witnesses he was not in fact he was told not to communicate with these