about discriminatory discipline and pretext in this case there were two directly comparable correctional officers who are both alleged to have engaged in excessive use of force my client mr buck who is a latino from brazil was terminated for engaging in excessive you course mr court date who was a caucasian received a one day suspens so the question is why the difference in treatment because this was a discriminatory discipline case the decision maker in this case wharton champagne flatow why of all the reasons for the different ways and thre e and she was caught in a lie resulting in subsequent litigation and as time progressed in an ever moving and changing explanation for why she treated one one wait in line the other way in addition in this case the department of corrections had its own internal express policy that said you need to have consistent discipline for people who engage in  fact and i'll get into this later the department of corrections did its own analysis to determine if discipline was being imposed in a consistent way and the decision makers entirely disregard disregard of that and th they work at the same institution they have the same position they have the same chain of command their fences occurred within one month of each other they have the same decision the judge connelly took a different view and similarly situated he decided that they weren't similarly situated because mr corkey did not engage in an excessive use of force or not accused of engaging in excessive use of force the record indicates otherwise and i will point to three point bases in the record that indicates that mr court day was alleged to have engaged in excessive use of workforce first warren champagne herself testified that he had he was not alleged to have engaged and use of force is contrary to the record the second thing that judge apparently focused on in finding or determining that these two gentlemen were not similarly situated was an allegation of falsification was but but there was more than that because there was another person involved in the line of silver and incident his name was sergeant fulton and the investigators found that his recitation of the abounds given to the  was was also inconsistent with the video they they actually lumped him and mr lamisil together mr mr fulton was not accused of false occasion to the video contradict mine and see we contend it does especially if you slow it down because it's it that the inmate raised his arms abruptly and the question is was that the boxy position or your arms have to be the people who are involved in the investigation the warden and then the use of force reviewers they all saw different things something that the people who conducted the investigation of ulamas so that the inmates stood at the position of attention the whole time and never yes but there's two issues in this case one was that the finding that they engaged in the excessive use of force pretextual but the more important question i think for purposes of this appeal is whether or not the the difference and discipline for these two so that leads me to the pretext issue which in our brief we set forth the four or five different shifting reasons the first reason given by warren champaign for the different and more lenient treatment of mr port day was that he reported the incident to the supervisor initially he filled out an incident report and he offered medical assistance ironically he did none of those things those were the things that de lima so let it go there was a hearing before the wisconsin employment relations commission and the judge perhaps because the judge said that  mr court today apologized or acknowledged wrongdoing and the use of force for mr hardee was different and not serious i think the words were not violent or excessive so that it didn't come off for the first time until the special case two or three years after the original reasons were given that were proven at the work proceeding to be false in untrue so that's the first issue record that they have to look and compare and say we're talking about terminating this guy has anyone been terminated for engaging in a similar offense they did the research and went back ten years nobody had been terminated for decision maker and they chose to entirely disregard this right what do you make of campaign deposition in march where there's attempt to explain good afternoon your honour's may please the court this is an employment discrimination case for sure but it was easily and correctly decided by the district court for the dilemma cilla had the burden of proof he was required to put forth not evidence a summary judgment that would allow a reasonable jury to find that my client's the barmen of corrections and employees discriminate against him based on race and national origin or put another way he was required to put forth enough evidence to convince a reasonable juror that he would have kept his job had his race or ethnicity been different everything else had remained the same you know spill to meet that pressure kilpatrick a focused on one thing sure ok and that is we have these couple of decisions from the wisconsin employment relations commission correct yes and one of those decisions as that you have a you have a state agency here the commission who is who has looked at the evidence and i think we have to trust they did it in good faith right i believe that the first answer is that these were not similarly situated employees yes they were both prison guards but mr de lima solo used the decentralisation technique to take and then make to the ground and it was believed did place its hands on the inmate and that throughout the investigation torie paperwork documents it continued to use the phrase placing of the hands and placing hands on the back completely different techniques he mr cortez was in violation of the principles of subject control policy which is different than the use of force policy only mr de lima silva had violated the use of force policy and that was the policy that says you may use non deadly force only if you believe that there is an immediate threat to your to yourself or others of about bodily harm i think mr reinhart made a different point i think he was pointing to and my just disagree with what the record says but he was pointing to other things in the record that said hold on the court case too was about excessive force right and i can thank you for raising that i think that term has been used a little loosely in this case and the reason is is that it is kept a vaguely generic term and that's why i want to point out that nowhere in the disciplinary letter of mr court today was that t few take an inmate to the ground in addition to the falsification that was regard to the follow up of the investigation afterwards mr court terry seemed to be contrite and understood what he had that was not raised in the district court that is correct your honor and in briefing believe me the argument that is something that you did but i'm wondering why you didn't waive it by engaging in litigation  discrimination based on race was incorrect you have to put the put the individual defendants in a pelleas in the position they were at back in two thousand and fourteen were there any cases that would have put them on notice that not not at all i'm not that's right i'm saying so i'm saying back then how would they have known that what their decisions were meaning firing and recommending firing would have been discrimination based on race discrimination based on national you're you are squarely in the territory of unlawful discrimination right but at that at that point all that was before them was that their their belief their honest belief was there we're not similarly look at the termination letter which the warden champagne has not backed down from in that germination letter and comparing the termination letter to the disciplinary letter of mr court today they are completely different again the situated employees and furthermore with regard to pretext you don't believe that the other side has proven these are legitimate reasons to be false judgments and question of course here's what i find you when you say look at the terminations letter i think your adversary is going to say well of course we can look at the terminations matter of the whole point of the cases it's focus those aren't the real answer the letter your honor i believe follows what all ten department of correction ploys decided after viewing the video that he had used excessive force in the decentralization in the incident of of the falsification those are not involved cortex so there is no comparison to that so i again that was the department's legitimate nondiscriminatory reasons and i don't believe that the other side has proven those to be and the that's the department says about what to put in the letter go to the heart of the issue which is the more favorable treatment of the caucasian versus the latino they've chosen not to put those things and record the chad anderson who did the investigation writes in his incident report sergeant corky grabs inmate martin and pushes him against the wall several times then grabs his head with his hands and starts to shake  hat as my wife pointed out to me the other day what's more dangerous decentralizing somebody in a controlled way or grabbing somebody's head and shaking them they're just different they're they're  excessive uses of force he also says that there's nothing about excessive use of force in the letter and i agree and ask the question why isn't there why doesn't that letter say anything with respect to court date about excessive use of force why doesn't it say anything about ball speculation because he's being treated in a more favorable manner just like him being mr courtney being advised to write a letter of apology to to the warden what happened with mr lima cil nobody made that suggested i get an incident of more favorable treatment the other thing i want to say is just on the provocation and in warden champagnes fourth or fifth iteration of the reasons for the difference in treatment