good morning your honour's may please the court my name is and palmer i am joined by co counsel dalin marcy we are students with the law school of the university of arizona supervised by dr willie jordan curtis we represent present in the courtroom today with court's permission we'd like to reserve two minutes for rebuttal ok thank you i will address the discrimination issues mr get mr marcy will address me because breach of its duty  guidry is a long term union member certified by the u s coast guard who has been dispatched to numerous third assistant engineer jobs in the past this action of rose after he was dispatched to the overseas kaskade in two thousand and ten he immediately turned over his original passport showing him to be african american there after he waited an extraordinary amount of time to be actually board the ship you explain to me is your theory of discrimination that the union discriminated against some of the basis of race or is it that the union somehow can prevent the employer from discriminating against him in the face of race which is the union didn't prevent the employer  isn't doing it because of race if if the union was aware of the intent and did nothing to stop it then yes it is a cause of action and we were complicit the you have anything to do with the whole vs a problem that's more of a fair representation problem which mr marcy will discuss but the union failed to do anything to follow up on why it was occurring in the main one of the main issues if he ever come during that whole period to the union even when he found his grievance and so being that the company is discriminating against me now faces a phrase he had a lot of complaints but he never say that it's because of race yes absolutely in the record whereas the records show that unfortunately i believe it's more implied than actually stated so it's never you never said his grievance certainly was based on race i thought his craven said you know i've been waiting for so long and so on but they never say they did this to me because  rights he's numerous now later he did but to the point that he actually was just passion would have gotten the job except that he threw it back did he ever do it and never say it was because of race i don't think he said that directly that what what he was pointing out to m e p a was the disparate treatment for instance his original passport was confiscated at the time he was dispatched in november billie's who was a caucasian made the member was permitted to keep his original b passport he was dispatched ten days after he filed his brazilian work visa application to a different ship he was able to earn a living in the intervening days between filing his application for for a visa and the unit was a union the one that said that he had them the passport and the captain the union confiscated while the union is investigator patrick anderson sent a letter to o s g saying that having him confiscated his his passport and not be able to work for ninety days was unacceptable that was members investigator help me understand what i'm working on the same problem the judge version is and we're taking you over time so yes well deal will deal with time with your co counsel and so on  trouble figuring out given that the union is the defendant on the discrimination claim precisely what it is that the union did that was wrong it sounds as though the allegation and the proof we have is not that the union was an active participation participant in the discrimination it's rather as you stated that they knew or should have known the discrimination was going on at the company and and they did nothing to stop it correct you have case law that tells us that a union in that situation is liable under title seven well all the case law falls under not under title seven all the case officers under the duty of fair representation and beavis policy was not to allow discrimination in whether by me or by the employers that was their policy ok so that off the ship there are inferences but no direct evidence that we've covered any meetings between the two that are supposed to have dealt with  may please the court you're on as i'm telling marcy i am also a student from the university of arizona law school and to really give a context what we're talking about here this is an appeal for a motion of summary judgment and so all we all mr goodere needs to prove here is that there is some genuine issue of material fact for this to be remanded back to the district court so he doesn't need to prove his case in its entirety here just that there's some issue that was not no so in what respect to you are you that the union failed in its duty a fair representation or the union studio fairest representation as has been set up by the supreme court as this court has discuss is an absolute duty to represent its members and every aspect of hiring in employment it's a duty that exists now we got there my question is specific to this case in what respect to the union fail in its duty the union started to fail in its duty when mr guidry was not dispatched to the ship and the union did nothing to investigate why that didn't happen so mr get three if we look at the facts mr get three was never contacted in december about whether he was found to be dispassionately which time he went in and said there's a problem the union did do something right i mean the union didn't proactively realise that he hadn't been shipped off but when he came in several different times and said there's a problem they did just something that is correct but each time it was mr guidry who had to go in he had to i want to make you know when you represent somebody you have to know what they want and they come in and he says that i mean they don't go around trying to figure out whether he's been shipped or not he they dispatched when they could what they needed to do with the employer and then it now there was a problem telling tom there was a problem and so they didn't know there was a problem until the first time he told them there was a problem but they knew in december that he had been dispatch ok and so from december until february that entire period of time m e b eight did not advocate on his behalf until mr get three essentially when and prodded them and said hey i'm still not dispatched and then m e p a would be oh well i guess we should do something about this sort of out there as it were post hoc investigation i mean he filed a grievance and then there's an investigation by the union mr goodrick contends that the investigation was insufficient to comply with the duty to help me out with that in what respect was it was it insufficient your honor the investigation was insufficient because many of the key facts that the union did eventually investigate were brought up by mr khatri so for example if the union were advocating on behalf the union should have discovered that this  dispatched to the cascade but the union didn't that didn't come up well if it had discovered this other man had been dispatched i think from boston believe it might have discovered that the ship ordinarily operated with three engineers and that mr elisa was dispatched to fill a position of engineer to instead of three and he was the second engineer of three in the spot that mr guidry had been slot for was still open would have discovered that they they might have to scupper that well and if they discovered that what evidence is that down of discrimination well it may not have been evidence of discrimination but it certainly was evidence of their failure in their duty to represent him so even at all doesn't that mean he was he would have had he not thrown in job back at the three month position that he was promised that right at the indication is that the record states that they say the position was still open have to say that and that i mean first of all they don't have to be right they just have to be have you know not not have to exercise judgment and not been completely arbitrary and dollar tree so how does this possibly meet the duty a your honor a point is that you know you know they had to and not only that but the employer had already done it response from the sea and they had an entire response or a lot of it anyway and they had often so they had a lot of material and they had and they together an understanding of what happened and the understanding they came to was at least plausible so how could they have failed her duty of ferrite your honor the the supreme court in this court has acknowledged that there's there's a section of types of investigation called perfunctory investigations that those types of investigation i'm trying to understand what's perfunctory about interviewing several people and reading a whole lot of documents and coming to a conclusion that there was always a job open ended the problem was that the visa if we look at the case law if we figure out what's going on m e p a had a duty to represent there is an advocacy quality to that duty and if we look at the actions was offered the job and he turned it down because he thought that he would be retaliated against on the ship as to the grievance i only saw the ok that we've taken you over time just as we took your co counsel over time we will give you some chance for about let's hear from the other side thank you honors good morning your honors may it please the court i'm robert weaver and it's my privilege to be before you on behalf of the enemy be on the surface your honour's the record appears to be complicated which is which it often does in hiring all cases where you have multiple requests from the employer to be voice of sir yes sir and no and multiple multiple referrals from the union to fill those positions straightforward he either title seven or fair representation issues how do you explain the fact that from december to february you do is willing to hear whether by the brazilian government there is no evidence one way or or another of whether there was any kind of particular system or any other protocol in place for following up on visa applications but it is clear from the record that everybody involved knew or at least o s d and and the union knew that the government the brazilian government was experiencing delays and in the review of the visa applications what about believes that he got his faster than he got he isn't fifty some days he his application was in line before mr mr good responses application was submitted i want to say your honor in october mr good reason application was not submitted until the what the what part of this that is pretty strange in that the and that neighbor was involved in i guess was why they took his original passport at the beginning he maintains that because of that he couldn't work in the meantime so i guess the question is number one is there any record about why and second of all you mumbled yes the passport the passport was taken from mr get really don't think there's any question about that in the record the mr guidry makes an assumption about mr bill as a having his passport we know that both m as it was on another vessel i guess it's a safe assumption that he in fact had his passport because he was on another vessel there's no evidence in the record one way or the other whether mr bill has actually had his passport but on the question of whether that prevented mr good grief from working there's testimony from mr nolan the n b a official that mr good record have performed local work what's referred to in the papers as in the deposition is he the night work or port work without his passport that was perform other than be the local park the port work of the night work as it's referred to is there something in the record about the local work or the port work or the night work that tells us whether people with his qualifications would do that work are you saying well you're qualified to be an attorney but listen you could be a janitor while you wait for your job i mean to tell me about this local or night work report work mr mr nolan the media official testified in his deposition that mr guidry could have performed port work no i understand that my question is not that my question is tell me about the nature of the work and whether someone with mr goodrich qualifications would ordinarily do such work i think the record will reflect from his work history which are some of the documents in the record that that's the type of war in addition to ship work in addition to sailing the whether the employer had discriminated was part of a case against me and you spend most of your time dealing with the douglas standards as applied to the employer why are we doing that well your honor the the it was certainly a question from the outset as to why frankly that the the constructive discharge or retaliation claim that in fact his the real complaint was the delay all right so why isn't that your defense that this is this is a case  in the method the district court addressed it under the title seven and both the mcdonnell douglas and the back analysis and reach the fair representation claim even though that was not specifically pled in the amount or so like that it doesn't make to me it doesn't make any sense i don't understand why ultimate lee i think the question the real question is whether there was a failure of the n b a to represent mr guidry and from the first point from the very first time that he complained even before filing a grievance from the first time he came to the union and complained about delay the union took action they contacted o s d to find out what was going on during that period of time the the process was entirely in the hands of the brazilian government and the company visas the company retained by o s d to to process the visa applications but but there was a there was never a failure on the part of the union to take any action and what i think the analysis really is is your honour's pointed  out in questioning to mr good risk counsel here is whether or not there was a failure to represent mr good to get to the extent that would make out a viable fair representation claim or perhaps  seven yes the the district court analyzed mr good reason claim both under the mcdonnell douglas under the mcdonnell douglas standard as a as a hiring decision even though of course the hiring as judge bryer found below mr guidry cannot do that because if his compare tours mr blair then mr baez and never went to the vessel without a brazilian visa neither could neither could board the vessel without a brazilian comparative or whether you apply the back decision title seven analysis or the fair representation analysis there's no compare to a mr good we cannot identify a similarly situated minority who was treated faster than good and that was completely the responsibility and the conduct of the brazilian government and when the v s s the vendor used bio s g to get the visa the union role is simply a conduit to pass paperwork from the employee to o s g who then passes it on to the vendor and the brazilian government for processing ok you've used up your time and if you have one or two sentences sum the clock but i will also say this for us students i am uncommonly lenient and the next time you get an argument do not anticipate that the judge will give you are a bottle time that you've already used and thank you very  and your others it's acceptable i will be doing the rebuttal so we don't have to waste time switching i mean there are a number of of issues that need to be raised but first of all the idea that guidry could have taken a port job while he was waiting for his visa if you look at our eleven page two seventy which is the m e b a shipping rules section eleven b specifically states anyone who has cleared for shipping jobs shall not be eligible for a port relief job regardless of the state starting date of the shipping job he could not have taken a port job in the interim while waiting for his that has nothing to with his passport right i'm sorry that had nothing to do i mean it had something to do with the passport and it wasn't because he didn't have to physically have passport correct but but the idea that he and i mean the one thing that here that seemed quite irregular was that he didn't have the if he had taken a job while he was waiting for another job then he wondered ready for the other job our understanding is the reason he was sent to get his brazil or to apply for his brazilian visa was so that he would be available to take the job there is no evidence of the record whether or not not the case a good reverse the marine engineers beneficial association now submitted