and we began with his wife's and him just meant good morning to all this case is about equality of opportunity being fundamental to we are and do we aspire to be as a nation and in this case equality was run over by procedure the district court abused its discretion in failing to grant mr all of ours as motion leave to file a rd amended complaint because the rule sixteen a good cause standard had not been previously applied to the prior amendment and i would note that the cutoff for motion practice on the schedule in order was in september several months later and that proposed rd amended complaint was plausibly pleaded and it was much more detailed than the discussed in the briefs it discusses whether sex played a role even the part even if other factors contributed to the decision so there could what it what is there that tells us that compared to ours are no longer need specifically the portion of last check that references the individual focus of the exercise and i'll note that in this circuit previously the requirement was that there be substantial factor of causation and that has been mentioned many times in the circuit and i note that it goes beyond but for causation and it in fact means more and then but for the negligence the harm would not have resulted that several cases in this court have have referenced that but under desert alice decided back in two thousand and three after the congressional amendments of the federal civil rights act under two thousand detached two m which refers to a motivating factor the plaintiff need only present sufficient evidence for a reasonable jury to conclude by proponents of the evidence that sex or whatever other factors was a motivating d factor for any employment practice now what is sufficient evidence under correct bostic says no to this because it is espousing that but for causation is not the but for cause but eight but for cause so whatever we might have thought that but fo causation meant it's now clarified to mean one of many causes as long as this contributes to producing the result and if that's true how can a comparative be necessary  one single exclusive factor but i take it you agree that discrimination never less remains a requirement even a bit doesn't have to be the sole solution of motivation that's current jam ok so what is your evidence best more to the point what if the allegation when he was dismissed he was on leave he had requested a leave for a certain disability which fall within the americans with disabilities act and the reason that he was given for dismissal was that his he had not submitted information from his doctors within the deadline to continue the leave but in fact as we have alleged in the propose amended complaint that was given prior to the deadline and so therefore it was inappropriate for him to be dismissed at that point in addition of course d he is alleging that because of his transgender identity that that would also constitute a potential reason for having been dismissed under this what he would say is a  evidence that was given by defendants and that has been detailed in his prior complaints to the company one of the major issues of this piece of it is that did it occur  was it complained of in a timely fashion but let's say let's say you go to trial in this case i pathetically what are you going to tell the jury in the court about discrimination about how somebody w dollars there was another employee there who mr all there as we contend was similar situated who was harassing him and called him a number of epithets related to transgender identity made in appropriately sexual jokes yelled at the yelling luke remarks of course the sales floor soliciting sexual contact  and the use that you know to team up was informed of used to not take prompting effective action to stop that there were a number of sensibly gender neutral actions one of which is this and i'm terminations for  failure to submit medical information on the ethical way issue but you know that there is it so there's a lot of things that occurred more than just you know a couple of items so when the of ours at that time but those complaints were rather short and to the point perhaps not a model of clarity but the rd amended complaint is twenty eight pages long it contains detailed factual allegations about the plaintiffs or in this case the the appellant's disability is how they fit into the americans with disabilities act these specific statements that i alluded to just before and in answer something to be desired out i still contend that the nd amended complaint contained enough overall that the it should not have just been dismissed but that there should have been permission to either  to move forward on whichever portion of the claims but the court decided none of that the court below simply said you know you have not demonstrated that you were covered employed under the  away and so that is out you know with regard to the others you know various other procedural issues about timing and so on and whether compared to was named so d that's why i say procedure trumps substance in this case and that was the deadline though for the amendments of pleadings what's in it before the nd amendment amended complaint yes it was ok here you are you already got one amendment and you know obviously on the one hand we try to work hard to provide justice but on the other hand there are deadlines you got good core standards of rule sixteen in moving that amended forward and the court certainly entitled to do that but the question then is does the court get to come back and say well but that deadline is still out there and even though you know no one spoke about it then there was no necessity of proving because now you have to prove the cause that's the major problem here because all that the decision below says is that you didn't reference good cause  sixteen in your motion for reconsideration so don't or you're in motion to amend so you're out and my question is how can that be given that we already had a previous amendment that deadline was obviously you know no longer in play it probably would have been moved had the court said ok you can go forward with your nd amended complaint so to suddenly say no you're cut off and i would also mention that the actual scheduling order motion come off was not till september several months later so the question with regard to the procedural issue here is do we say that when a plaintiff seeks to amend that putting aside any merits issues that if the case goes on long enough and there's enough things happening that you get beyond the scheduling da and that date is now being ignored by everybody but then the point of once come back and say ok i have a much better amendment now it's twenty eight pages elice all the elements all the counts there's a detail factual recitation explaining everything then the judge said well relevant of course it's not binding but the reason that's relevant because it shows how district courts actually work in practice i don't i think there's no question at least i should there's no question that the district court could have been nicer and we would not have found they had to be an abuse of discretion i think the question before us tom if you agree or not given that the district court did not allow this this well when we call the nd post deadline amendment whether that that nd denial what these teach is that some of the dismissal of prejudice is such a severe penalty that it should only be permitted where there's really no merit to the case and i think the issue here was the pleading was  as i said you know not a model of clarity and there was a nd opportunity to amend it and as a matter of fact it had been amended once before you know this is the court and the others the defendants got involved so the really a number of bytes of the apple but the point is that looking at the rd amended complaint one cannot help but see that this is a meritorious case that the issues that it raised by the judge and the defendant the qwest oh i said well i mean i think the importance of this is that if we were to look at whether or not the district court abused its discretion in denying these to amend and under the sanders that i just mentioned and rosenblatt and taurus then this court could send it back to the district court for him to terminations of whether a rd amended complaint should be permitted and of course the court could certainly direct if it feels that there is sufficient information in the record to do so that rd amended complaint should be filed but i think it makes more sense to have the district court judge look at like what's d actually in there as apparently you know there's no discussion in his order about what's in the rd amended complaint compared or not compared or you know timing none of those issues that were raised complaints another words a coworker that the company is not responsible for coworker because we know it's a negligence theory but once the company's on notice that this is occurring and they tell the plaintiff look this person is a high high and you know someone who brings in a lot of business you know we're not going to do anything now it's on the company and so that creates evidence and there's a lot of in the rd amended complaint just that that indicates that when this decision was made by t mobile to get rid of mr all of ours that that played a role there or there failure to address these complaints and the threats that were made because of the complaints indicates a bias based on his transgender status so it's not harassment it's not a separate harassment hostile work environment theory you're saying that just helps tell the story of discriminatory motive by the company is mike a prude and i represent the apple e t mobile who is mr all of bars is former employer as the court is heard in a way two thousand and seventeen mobile granted mr gold bars is request for leave it extended the request several times extend that leave several times at his request and was only after mr all of ours indicated about a half a year later that he was still unable to work at the company terminate his employment rather than reapply once he became eligible or able to work mr obligate him to submit evidence to establish all the elements as prima fascia case it does require him to plead sufficient facts and all the ultimate elements of this claim he tried and failed to do that three times after his nd petition was filed the company moved to dismiss and noted a number of problems including most important for today they failed to plead any facts which would suggest that his protected status had anything at all to do with his dismiss that is not sufficient that might be sufficient to allege and i think would be sufficient to allege a hostile work environment claim but is not sufficient to allege anything relating to his terminations or simply no connection between those comments which honor so of course that wasn't before the court when the motion to dismiss was decided but the compared to that he's referring to is not a compare and all it is the alleged wrongdoer coworker who made these comments that he says happened back in two thousand sixteen the question for if to consider whether or not that individual is an appropriate or would be whether or not the situation was similar and so for example there's no allegation that that individual later was allowed to take a  complain we don't think stands up to any scrutiny when you actually look at with a thirty minute complaint sets and of course we believe that it's important of course that when mr volcker does what's the theory part of me i could obviously study is more carefully what is the theory that this person or if this person never got number of never sought any amount of leave at all there's no theory put forth in all of ours is briefing either here or down below he just simply or sites i've named a compared are and he points to  course it's important to note that he told the court that he had made enough allegations he didn't asked to submit the rd amended petition or any other he stood on his prior pleadings which we think makes makes a difference here  dismissed those claims because he had failed to fix the issues that were present in the st two complaints at that point in time of ours as current counsel appeared filed a motion for reconsideration as well as a motion to amend and at that point submitted the thirty minute complaint roughly a month after the court had just missed the case that motion did not identify any newly discovered facts that motion do not identify any manifest error of law or fact by the district court and although mr all of ours now claims otherwise it did not present any relevant change in the law the district court therefore correctly in our view denied that motion as well and a ruling by this court to the contrary materially undermine a district court's ability to manage just docket through the dismissal claims that don't meet the rule eight pleading standards by allowing what you have here which is an endless series of requests for leave to amend even after judgment has been granted why she wouldn't be entitled he wouldn't be entitled to a rd or th or as many as the plaintiff might ultimately requests with my remaining time i want to address two closely related topics whine the dismissal this title seven claim was appropriate  mobile did not then and did not now does not now say that in every instance the plaintiffs must absolutely name a compared or in a complaint there are certainly other ways of establishing discrimination at least at the pleading sage but none of those other ways were done to eval he doesn't alleges a direct evidence of discrimination he doesn't allege for example that the company told him look we're going to allow you to take as much leave as you want and then it was only after he disclosed his transgender status that the company changed its course he doesn't allege anything along those lines compared or otherwise tying his protected categories to his dismissal mr all bars in his response to that motion did not make any of the compared or arguments that he's making now is on top of all the issues and weaknesses that we think there are with the argument itself we believe it was waged by not presenting it to the court in response to the motion to dismiss indeed in response to a nd motion to dismiss mr all of ours did not address his of those facts and because the court directly applied this court's guidance about what a discrimination plaintiff must allege namely a connection between the protected category and the adverse action that you are suing over will believe this report correctly denied or granted t mobile in broad spiers motions and dismissed those claims with prejudice turn to the nd issue we believe that was both correct then but also correct after  bostock when plaintiff filed his motion for reconsideration in two men as noted he didn't identify any new facts and doesn't allege now the word any and now doesn't alleges there is any manifest error by the district court and said on appeal he says and it was resolving the case on on the topic so we just discussed it's all the talk was a change in that regard it was a change that matters for purposes of mr all of ours as claims counsel has discuss course proceed under the motivating factor prong if they choose but that's not an issue for this court it's always been the case even before bostock that there can be multiple but for causes bostock certainly didn't say that it was making new law on that ground or that was overturning any previous precedent cited a number of its previous cases including burrage and nasser and phillips and manhart which stand for exactly that proposition and so we don't believe bostock change the law as it relates to but for causation and it would point out any of it this is not a case where we have said the case ought to be dismissed because there is multiple but for causes and some are legitimate and some are not there are has always been journal of ours as pleadings don't is brief for this court he still seems to recognise that compares our program he talks about bostock requiring him to be compared with all the other employees in the workplace only on the on the rationale that all the other employees are are not transgender and others bostock court itself reached this decision in the context of defining the term to discriminate against a person to mean treating that individual worse than others who are similarly  not discuss at all the effect of a scheduling order and in fact was decided under the previous version of the rule from the one thousand nine hundred and thirty s which did not have a good cause standard all mr all of ours is not cited and we're not aware of any cases that have said that when there's been a deadline has pas sed and employee gets to drop back into the more lenient standard after a judgment has been granted smith that would make no sense for there to be a period of time where the plate it has to make a higher standard and then only after the judgment to they get a to what t mobile has argued but i will go through the points that we that we want to emphasize the most so we know that mr lamar is appeals the dismissal of his gender and disability discrimination claims as well as the denial of his motion for reconsideration and the denial of his request for me to amend and file the rd amended complaint however we argue that the district court's rulings were correct at every turn of the case and should be affirmed the two key issues i'll focus on today will be the role of the boston opinion in this case our position is that it did nothing to undermine the use of comparison title d seven cases and so the district courts dismissal of mr all of ours as gender discrimination claim and the decision not to reconsider that dismissal were both correct the nd issue that i will focus on is why the post judgment amendment mr all of ours is a complaint would have been both improper and futile whether we apply sixteen or rule fifteen of the federal rules of civil procedure so regarding the  mistakenly extrapolated bostock's rejection of comparatives at the group level to mean that the use of comparative is not valuable at any point in the title seven case but as demonstrated in the bust up opinion the supreme court has use title seven by firing a gay male employee while retaining the employee's female counterpart who is otherwise identical to him except for her sex so this circumstance clearly shows that the boston opinion had no intention or effect getting rid of the comparative analysis in title seven cases and as t mobile pointed out in its supplemental authorities letter this court has recently recognized this notion in the newbury vs what the crest case that was  d earlier this year although newberry involves a sexual harassment claims we believe that the holding still holds true it is correct to that even though title seven now applies to both transgender and gay individuals the pre these circumstances in our view demonstrate that this district court was correct to dismiss mr all of ours as gender discrimination claim and ultimately to deny reconsideration of that dismissal when the district court ordered dismissal of the authority that cited in our brief regarding not a relevant intervening change in the law at least with respect to compare is and how they affect the title seven analysis so reconsideration wasn't warranted in that case and even if we concede for purposes of argument that mr all of ours did not need to allege anything about comparative years in order to survive dismissal his nd amended complaint still failed to plead any facts regarding direct evidence of discrimination or facts to support the notion that broad speier discriminated against him based on his transgender status the nd amended complaint merely he alleges that mr all of ours was transgender and that his he requested leave and that drugs are in tonight or delayed approval of his leave request but the otherwise doesn't lead any facts to show a nexus between the the lead decision and his transgender status and he concedes even in his nd amended complaint that most of his lead requests were granted and so this failure to satisfy the cleaving standards justified both the dismissal of the claim and the district court's decision not to reconsider its dismissal the with my remaining time i'll address the last issue that i wanted to cover today which is mr all of ours is request to amend his complaint for a rd time and prosperity of the district court was also correct to deny this request under both rule sixteen and rule fifteen regardless of which one applies as has been covered previously mr all of ours requested leave to amend the district court did apply and in requesting leave to amend mr or mr olmert has failed to address real sixteen at all which they justify the district court's decision to decline to grant him leave to amend although mr all of ours has argued that the district court lead to its ability to enforce its scheduling orders simply because it deviated from less than a handful of deadlines during that case there is no case law that's binding precedent in the circuit justifies that result or supports that proposition which mr all of ours has conceded in his briefs in this case with respect to rule fifteen the liberal amendment standard it changes once the court has ordered has entered judgment on the merits and so mr all of whereas all of ours was required to show that he could not have raised any of his proffered amendments before the district court and her judgment which he failed to do because as is shown in the rd amended complaint virtually all of the proffered amendments are based on facts and case law that was available to mr all of our as prior to the court's entry of judgment and finally any further amendment of mr all of ours this complaint would have been futile as has been discussed during this oral argument previously mr all of ours had multiple chances to plausibly plead his claims but failed to do so at every turn even with the district courts express warning that he had not met the pleading standards and specifically with the claims against fraud spire in the rd amended complaint mr all of ours still fails to plead any facts that suggest that there was any illegal disparate treatment based on either his disability or his request for  issue save time for a bone yes this may be a preview of the crenshaw case now on appeal number twenty nine thousand and twenty two in which the lower court sided trotman and richardson to say that it's possible mcdonnell douglas does not apply when the employment concedes that discrimination was not the sole reason but argues a motivating factor it's unclear if richardson applies to all mixed mode of cases or even all if immolate cases like this i would also note that mobile admitted in its brief on page twenty one that compared is not necessary and yet it is arguing to support today that comparatives are absolutely necessary and i would note that i need to correct my answer to you judge ho that there is a hostile work environment claim involved here which is permitted under intranet st this morning because as long as there is something that occurred in the time period everything outside the time period can be brought up with and it thank you thank you ms weiss for your cases under submission and again we thank our show for your cooperation and patience and court is in recess