understand it he's not he's not in the navy right no i believe he's was just a civilian officer working at the great lakes and the great lakes hires apparently hires civilians as part of their police force yes john and mr phillips employment started with great lakes in two thousand and three starting in two thousand and seven he filed an internal complaint complaining of racially discriminatory practices a great lakes that resulted in a settlement agreement whereby great lakes agreed to not discriminate against mr phillips further in two thousand and nine mr fields filed a nd internal e mail complaint complaining that great lakes had continued to discriminate against him in violation of the st settlement agreement and had retaliated against him that also resulted that two thousand and nine internal complaint resulted in a nd settlement agreement with great lakes to refrain from discriminating against mr phillips in two thousand and ten mr phillips filed further discrimination complaints complaining that his now supervisor james pittman mr pittman supervisor james knapp had continued to discriminate against him and have also continue to retaliate against him in addition starting in two thousand and ten mr phillips ringback complained about other discriminatory practices unrelated to him including the mistreatment and excessive force used against black detainees he complained that white arrestees film gretta wiser tests and were allowed to leave while the black tape detainees who did not fail were arrested and that officers referred to black people as monkeys coons and niggers and even supervisors were planting guns on black arrestees in order to get felony convictions again that started in two thousand teaming continue through two thousand and twelve in two thousand and ten james now with previously been mr phillips's counterpart became his supervisor and that's when the alleged disciplinary infractions started against mr phillips that ultimately c terminations now want to talk about the next seven dollars strikes they're presented as seven strikes because the defendant has said very clearly that it's a culmination of the disciplinary actions that cause mr phillips to be terminated wasn't one single event it wasn't six it was all seven infractions one through four as we believe are not infractions the old infractions one through four allegations by james pittman that mr phillips was a wall that mr phillips failed to properly call and when he was going to be late to work and he had been marked a wall problem with that is number one another commander has already testified i mean already provided evidence that that is not the practice or policy to mark and officer a wall when they call in late a ringback while means and that designation is for an officer who doesn't show up and who is missing mr phillips will simply link and mr phillips did that is what pitman's version of the fact is and there is some dispute there as we cite the dickies versus chris case the united states supreme court says that your policy is not what you have written down your policy is actually what you're doing and what's important here is james knapp who's in charge of policy there who's in charge of the other commanders said that our policy allows our office to officers to call and that they should be marked a while when they pittman was too rigid that map allows exceptions you know my argument your honor with all due respect is that pittman says this is how he and force the policy but pittman knew that this wasn't the policy and also now who knew but that is what matters is whether five men and discriminatorily enforce the policy are there any evidence that he allowed white officers to call in and he didn't allow your client with regard to the a wall to the st floor strikes the argument then you don't have any and the comparison argument with respect to the rigid enforcement of the leave policy by pitman except it except that he knew that it was doesn't matter if he wasn't discriminatorily enforcing it what matters is whether he was discriminatorily enforcing it in other words holding your client to it or not holding everybody else to the other white officer not an protected so maybe move on to the next category what i'd say it would still would like to point out your honor that that argument is appropriate for the pretext in showing that again it wasn't a not a violation that's not something that someone should be disciplined for it's also important that the trainer scholz testified that officers missed this training all the time it was something that they made up regularly and that more importantly pittman testified that he disciplined mr phillips because he did not reschedule the training schultz the actual trainer who's in charge of the training testified that it's the supervisors drab to reschedule the training that phillips couldn't even reschedule the training if he wanted to it was pitman's job the discrimination argument is that the are worth three not african american officers who missed the training who were allowed to make it up and who were not required to reschedule it but mr phillips was hill to a different standard it's moving on to strike six the allegation was that mr quite downloading early that he left early mr phillips testified i'm sorry it was short who testified that he had also downloaded early that now his supervisor who's responsible for the commanders knew that he downloaded early and nat did not discipline him now testified that in those situations you work with the officers you don't discipline them yet knapp approved pittman discipline disciplining mr phillips for downloading or downloading downloading early which by the way there is evidence according to mr phillips that once they saw two officers dressed and ready to  happier use there was adrian rivera who used the copier for personal use and he was not disciplined that was the the straw that broke the camel's back allegedly for mr phillips that cost his terminations what's important here is that when he was written up for using the crappier for personal use pittman had no idea what he was using their crap your for there was no way to me could have honestly believe that mr phillips was violating the policy when he wrote them up and sent him to h r he had no one the only way that they knew plenty of was allegedly using copier was because they saw him on camera the same security team looked at the same cameras and did not take any action against mr rivera and even when pittman found out that ample evidence of mr phillips's have protected activity and that these actions are pretextual either because they are number one not violations as alleged with the a while argument number tw the court counsel officer phillips was terminated because of his repeated misconduct and his failure to follow the navy's rules not because of his race or is protected to its undisputed that mr phillips committed at least the following infraction he left his patrol shift early without permission which caused him to miss an alarm call causing his partner to have to respond to the alarm with no backup and a different shift he skipped spent two hours in the middle of a shift in the supposed to be out on patrol maintaining the safety of the base instead he spent that time making copies making over a one thousand copies on the navy's printer for his own private business that he wanted to use for his own financial gain he skipped a mandatory training even though he was told he needed to attend he was reminded of on the day of training that he needed to be there didn't go and then if he was repeatedly late for work or didn't come to work at all without receiving approval from a supervisor including one occasion when he actually did talk to a supervisor asked for leave the supervisor said no you need to come to work you don't have a good reason for leave today and you just didn't show up anyway phillips's argument essentially is that the navy was too hard on him and that it should have let these infractions slide he wants to ask a jury to sit as the navy's super personnel department and to make the personnel decisions that h r the navy made about whether these were you know important rules and he needed to follow or not counsel can you the police department at the great lakes naval base is also billions as far as i'm aware it's so important point which your honour's have noted is that this is a discrimination case and there needs to be evidence of discrimination or retaliation not just an argument that maybe the navy could have let this go and didn't need to discipline mr phillips for his admitted misconduct in the district court phillips elected to proceed under the mcdonnell douglas burton shifting test and he continues to apply that sest on appeal the district court correctly held that he failed to set forth a prima facie case of discrimination because he didn't identify a similarly situated employee who was treated better officer rivera philip says was similarly situated because he also used the copier kind of was completely different st officer rivera was not supposed to be out on patrol when he used the copier he was on a training day jobs he wasn't essentially skipping work to use the copier a nd officer rivera made about one hundred copies as opposed to the one thousand three hundred and seventy five copies that officer phillips made rd officer rivera didn't make those copies for his own benefit rather philips himself asked officer rivera to make the copies and then phillips is the one who turned around and use them for an improper purpose for his own side business rivera reported to a different supervisor nobody noticed that rivera used the copier which is there's no surprise there because he was where he was supposed to be used for a few minutes so the navy never disciplined him of course for something they never recognized an officer a very doesn't have a similar history of misconduct as phillips does the other compared or that phillips raises this officer schultz who did commit misconduct by when he was at near the end of his shift he was supposed to be out patrolling the base and instead he drove to the police station and he parked in the parking lot and waited until it was time for him to kill but the differences officer schultz kept his firearm he kept his radio if there had been an emergency call which there wasn't but if there had been one he was available and ready to respond to it he just wasn't patrolling like he was supposed to officer phillips just left he turned in his his gun he turned on his radio there actually was an alarm call he didn't show up he put his partner in danger he put potentially put civilians on the base in danger there's they're not comparable to the other officers u s training officer phillips is burden to show that they were similarly situated he he fell far short there's no evidence of why they missed training or whether they had any had permission from a super phillips also failed to prepare to identify any evidence of pretext that the navy's lying about why they terminated him and so that he failed the nd or th in the coleman vs donahoe case is an whether or not the the individuals violated the same lou policy the department of justice is arguing about how many copies that mr phillips made that's not the issue because pittman specifically testified he didn't know how many copies it was at the time it wasn't about the copies it was the fact that mr phillips was using the copy copy or for personal use that w violation there's no dispute that revere also used the copy your for personal use the reason dispute about what that personal use was rivera says phillips asked him to use it because he needed help with the shooting stance phillips said no i didn't i didn't need any help with my shooting stance but what is undisputed is that the defendant knew that rivera use the copier for personal use and did not treat him in the same manner as mr phillips moving on to mr schulte it's not about  what weapons he had on him the issue was that mr revere mr schulte download it early the policy that you're not to download early and that's what mr phillips was accused of downloading earlier and again mr schultz was not disciplined in the manner that mr phillips was lastly these three individuals who missed training counsel argues we don't know what evidence isn't there but we do know what is there we do know that they missed the training we do know that mr philips also missed the training and that he was disciplined for it and again regarding the pretext issue as i argue the a war issue one through four is pretext because that