your own may clues the court my name is justin vex and i together with my co counsel matthew o'brien will be representing miss rosemary gerry in today's case i plan to spend four minutes addressing the question this court asked us to brief that is which title seven standard to apply as an element of claims against labor unions we are to score to hold that it does not the texas purpose of the statute demonstrate why the standard applied below is wrong as the seventh circuit said in green nothing in the text of title seven makes it even turn on the existence of a statutory or contractual duty to let suppose that i think that the the judge easterbrook opinion in green has got the best of the argument here are we bound by something that we said in back no your honor this court is not bound by confusing part of the opinion is that it says it uses the language that the two standards are generally consistent with one another which the best reading of that case is and it refers in a reverse of the seven circuit opinion in bug so it's just a little it's a little it's a little misleading i bit from your position at least it feels like a little bit of mr rection now the question is how much mr rection did the panel give us and are we bound by a yes your honor now essentially what the court did there was say that it was generally consistent and the reason it said that is because in that case the standard that is applied does not change the outcome of the case and the reason is because before the court reached the title seven question it analyzed the duty  concluded that there was a breach of the duty of verification so by the time i got to title seven it didn't matter whether title seven was an element of the case or an element of the claim in our case by contrast we have a district court order saying that there was not rece no there's no question we referenced it but you're saying we didn't even apply it well all the court said is that the two standards are generally consistent and what we're saying is that the reason it said that is because it didn't matter which standard the court applied in that case because the outcome was going to be the same either way so essentially the court didn't have to reach the question that is before the court today the question before the court today is which standard  correct so what you're saying is we did apply bugs we did apply if you will mcdonnell douglas i'll just call it that simms right the but now you're saying we can apply  today no your honor the court in that mention the bug standard but it doesn't get to the question of which standard is correct bug or green because it didn't have to and the reason it didn't have to it is it could have reached green because green had been decided or which standard is correct bug or the traditional mcdonnell douglas factors is what i mean when i say green and the reason it didn't reach that question is because that question was not at issue in the case because it had already decided that there was a breach of the duty of service and patients it didn't matter whether that was an element of the claim and so it couldn't analyze the mcdonnell douglas factors and conclude that there was a title seven violation without determining the question of whether or not it needs to include that as an element of the claim because there are navy a tort claim in this case if there is no also a   to labor organizations notwithstanding the collective bargaining agreement you're on i mean it seems to me that that is a pretty big question in determining whether bugs controls us or not  the reason why title seven can't depend thousand or the idea can't depend entirely on a contract is because that would completely gut the statute as it applies to labor organizations if if title seven only applied when there was a violation of the contract then for one title seven would never have had to be passed in relation to labor organizations because the point that would already have a remedy under the collective bargaining agreement and secondly just congress making it depend on some other duty or some other violation just defeats the purpose your honor my time has expired and i at this moment i'd like to defer to my partner if this court has no other questions and you may do so thank you co brief focuses extensively on the fact that this a guarantee made similar allegations in the two complaints and ignore the other factors and elements that go into considering preclusion additionally miscarry has not had a full and fair opportunity to litigate her claims and issues in this case the supreme court's consistently held that a plaintiff must have a full and fair opportunity to litigate before preclusion can apply and since after the night of consolidation miscarry was unable to argue her legal arguments on the claims and issues in this case in her previous case but give me a little outline here it seems to me that the complaint is barred by issue preclusion if it satisfies  for the issue issue preclusion we believe that the district court eroni asli apply that believing that a breach of the duty of care presentation was an element of the eighty eight claims if that is not an element as we argue that issues never been addressed and  claims and the nine hundred eighty five nine hundred eighty six claims yes your honor i see i just want to make sure well the worry that i have is that it seems to me as my colleague is now presented that if mr beck's argument is not something we go with then it seems to me your complaint is barred as a claim yes it would be your honor that we would argue that mention the bog standard passing it was not dicta if pacifically referenced the bug standard and it analyzed each of the elements in all oh it sure was sure was off the way that the court sort it out if that's if that's true mr hall because if it doesn't it doesn't refer that until part b and in part a it goes through all the elements of what somebody has to prove in order to show a title seven case it does so it's reviewed all of the elements without mentioning do the a fair representation at all and then be looked like if the application where it just begins with a recitation of what the district court set and the district court cited the eastern district of virginia citing citing the seventh circuit appears to be just a passing reference and then we have bug standard it then analyzes the difficult opinion on each one of those elements and if you have any question that the court was looking at all those elements and trying to decide if those elements should be applied here take a look at footnote for the opinion because i don't for the court actually looks the third prong of the most standard and it says look we're concerned about the continuing viability of the third from a sense obviously the court when analyzing the opinion and looking at bugs and discussing the fact that it's consistent with mcdonnell douglas douglas it was looking at each prong of the blood test and trying to determine whether or not the district court's opinion in that case met the standard in budget adopted dog and analyzed bugs and obviously it applying the district court standard well no i think that one or the the court then goes on to look right after it mentions the bug standard it tries to find out whether or not the district court was correct in finding that there was a failure of the union to to engage in fan representation and fun but i'm looking i'm looking to see whether if the court even refers makes reference to the terms fair representation any place else in the opinion ok well directly below discussion of bugs you see that they're out there that they're asking they're trying to find out isn't there and they find that no in this case the union while represented males vigorously it did not represent females so that was that that was the  analysis of the of the of the justices it was also sounds like or just a straightforward title seven application doesn't it it sounds like a judge but look when you look at this and it's clear that you could violate a duty of fair representation without violating think you can harmonize a here's i don't see that a can be harmonized that be a doesn't look anywhere near to the to this if you will to be a fair representation a goes through a totally different talking about val douglas goes through exactly the burden shifting that i suggest is normal in most of our title seven cases and i guess i'm trying to figure out how you get rid of a wider argument right i don't i don't say get rid of a had think the court found in this case in portion b i think what what the court with saying is that you can harmonize title seven and the bug standard and it's a good practical way to do it and that's why they comment specifically comment in point i didn't see anything in the where it was time to harmonize anything well i think all you know i said i look i look through a and i look through the application if you will of the mcdonnell douglas test and how i would do it and i it's the normal title seven analysis that i give and frankly i'm having a tough time seeing how b is the court said in this opinion in portion b was that the bug standard made sense and was a logical way to apply i think donald doesn't slandered as applied to cases like this let math let let's suppose for the for the moment that the panel is not bound by anything that we set him back with rick with respect to a title seven claim against the union so as between bug and green tell me why bob is correct to tell me why the seven circuits reconsideration in green is wrong well judge i think when you look at the policies underlying direct claims against the union really those the heart of all those claims is the duty of the union to represent employees and without a duty to represent employees of fair duty representation there really is there really should not be a valid claim against against the union otherwise  whole duty the whole point of letting her claim her miscarriage claim here doesn't have anything to do with the post office it's this is all about the union rush so this is an independent cause of action congress created in the pen the cause of action in title seven specifically incorporates unions as its own section that's different from other from other employers and why isn't judge easterbrook correct that if if the if the title seven claim includes a far element  other opinion out there that gives a considered treatment of this question i know that we have i know we haven't published opinions on the fifth and sixth circuits but it looks like everybody just followed bob after i did extensive research on this and i cannot find right now with the last two minutes i'd like to address the claim but pollution issue i guess i guess my further question and the thing that most worry to me it seems to me that an eighty a claim can arise even before a contract well and that eighty eight claims even against the union can arise before the contract and so therefore i'm still having a tough time understanding why the duty of fair representation include is should be included in claim even before they have a situation campaign even before they have a contract they can so if they can and it's under a b a then why is the duty of fair representation a part of the claim well i think  patients all right i'm sorry to interrupt you but there was some worry to me that seems to me there are claims arising when before contract happened i understand ok you know i only have a minute left to address claim all to the the case was dismissed by dutch judge dawson and in both judgments then why did we have two disparate judges that were asked to consolidate the question and both of them to turn to turn it down say it wasn't identical you know what judge they had a totally different record when the motions to consolidate were heard and decided those those motions were heard based upon the initial complaints miss geraghty was then asked to amend both complaints both judges after to amend those and threw those amendments both of those complaints morphed into each other miscarriage literally cut and pasted from each complaint and merged the two but there were actually based on  different statutes and one was one had state law claims that had one of the ninety five conspiracy claims and it had eighty eight in title seven claims no it's based on the labor maus those aren't those aren't the same causes of action the judge in this case they are barred they are barred because they're based on the same operative facts both judges eventually figure that out judge dawson of eventually in his order of dismissal said look all of your claims all of them are based on the the handling of a single seven is clear that it that congress intended for the statute to apply to labor organizations that specifically included labor organizations among and covered by the statute and in the case of the a d a s it simply defines covered entities to include labor organizations employers among other entities and then it goes on to describe the kinds of discrimination that is barred by the statute making no mention of different standards to apply for different entities and make no distinction as to what entities are being sued