we're ready to hear our first case which is diggs niagara mohawk power corporation i your honor may it please the court response counsel in my thirty years of practicing civil rights law it seems harder and harder to defeat summary judgment if this case of racial discrimination cannot get to a jury then perhaps no case can unless there is a racial epithet involved of course then there is the doctrine of stray remarks but there is nothing stray in the facts of this case after all the evidence was in a certainly by the time of arbitration the company knew without  doubt that of the five employees disciplined for misuse of company heavy equipment only one employee was terminated the african american while the white employees were given warnings or in the worst case a three day suspension agree the remorse can be used as a factor by the employer and considering what the appropriate punishment is yes i would agree however there is no evidence in this record well one of the employees employee number three as we described in our brief not only committed a far more egregious offense than the plaintiff in that he took the equipment for an entire week but he covered up the name of the company equipment in the name of the company's logo and replaced it on the vehicle to hide it when he was being investigated on that is there evidence that he lied there is evidence that he was interrogated for two days just like my client however there is no information in the record as to the comparative hours whether or not they were telling the truth those well so there's no evidence that they lied there there's no evidence that they evidence that mr dues lied there is evidence that what mr diggs did was the first time admitting taking was not a sufficient difference because there are in a case involving compared to wars under the decisions of this court that is certainly a factor to be taken into account as your honor asked me and i admitted that was how ever it is one of many factors that would have to be considered in this particular case in comparing the plaintiff with the four employees so that there was no aren't the written reminders admissible here and that is these  to each of the other comparatives at least three of the other comparative several of them had prior instances numerous prior instances of misconduct which was not the case with the plainti believe what the court is referring to is the fact that these people were given letters of reprimand memos to each employee to twenty two to twenty four to twenty six yes  it is that they are being reprimanded in the circumstances and also indicate that the of these admitted their misconduct well i i don't see there is any evidence in those memos of forthrightness your honor and in one of the cases as i indicate all of them refer to the fact that the employee admitted when confronted that they had engaged in the misconduct i don't believe that was the case in point number three iran or the man was interrogated for two days very which was the case with the plaintiff here the plaintiff in his first interrogation admitting taking the back call home but did not admit using it for ten minutes on a stump but in the case of employee number three who had engaged not only in hiding the company logo but in stealing the company fuel card in order to use the company's fuel for these activities and that individual by the way was in loud to make restitution in an amount of three thousand dollars whereas in this case approximately three thousand in this case there would have been virtually no loss to the company from these activities mr diggs is restitution if any would be de minimus but the i'd least in my reading of the record i didn't find anything in those reports that indicated particularly honest with you then address the collins issue yes the collins issue your monitor is a case where the employee punched his  his decision and using almost his exact language is that he felt the issue of leniency was for the company so in his view if the other four employees were treated more leniently then the plaintive that would be not something that he should address he wasn't looking at the title seven issues in which the rates of the comparative wars is an important factor numerous decisions of the scored on well he says i thus find the grievance dishonesty in this of attitude investigatory meetings with this is a one fifty one  scene which is his case from those of the other comparisons on a c contrition and the potential for rehabilitation do make a difference ability yes there was no indication that the plaintiff in this case had any prior disciplinary history unlike all the other cases that were cited in the brief when the comparisons were rejected the arbitrator said very clearly that he believed the employer had a reasonable basis for discharging the employee i don't disagree with was one which the arbitrator said he specifically was not deciding and he wasn't addressing title seven issues well i believe under the alexander gardner denver decision that that we've brief extensively but yes your honor he was not addressing title seven issues and under the decisions of the supreme court of the arbitrator applying a contract principle of just cause does not foreclose title seven litigation and i would say particularly so where you have such dramatic comparative evidence the there the evidence before the arbitrator is the same as what's in this record merely someone from the human justify treating the four white employees with leniency which the arbitrator said he didn't have jurisdiction to consider in comparison to this employee who this was his first time and his act of misconduct was much less severe than any of those i think we'd have to agree that the disciplinary records establish that you did not put in the collective bargaining agreement  i was not the attorney cannot blame me i just know it's not part of the record but the arbitrator in his decision does as most arbitrators do typically reciting what the issue is for his german determination which was was mr diggs required to proceed in this way that is did was of something about the agreement that required him before or in tandem with filing with the new york state division of human rights making filing this grievance or having asking the union to file the swedens on his behalf there's nothing in the record that would indicate that he was required to do that from what i've seen in the record the title seven case was completely separate from the grievance arbiter which is often the case the arbitrator posed the question as to whether there was just cars for terminations and if so what the penalty would be and that's what he decided on a contract grievance basis and consistent with the supreme court precedent that does not call for close the title seven action thank you  they please the court your honors we respectfully submit that the different arguments that the appellant is trying to advance in front of this court find no support in the record evidence in this case and they're also inconsistent with the governing legal standards that apply in cases of this nature where there's been a prior evidentiary hearing first and it appears that the a pollock has argued that judge sharp gave perk loose of effect to the arbitrators award that simply is not the case a review of judge sharp decision confirms that he properly applied this court's standards as developed in collins second judge sharp's did review the record evidence and properly concluded that the plaintiff could not survive summary judgment independent of the arbitrator's award he found that the plaintiff was not similarly situated with the comparative hours under the standards that have been developed in the second circuit and they found that the plaintiff had presented insufficient evidence no evidence really to show his claim of discrimination the evidence with respect to the difference and the potential for rehabilitation in terms of with respect to mr biggs i think that mr the arbitrator recognized that mr diggs lied repeatedly during the company's investigation in fact the arbitrator found that he was not forthcoming even during the arbitration hearing and in fact the arbitrator recognized as i think the courts have recognized that contrition honesty re morse is in fact significant for an employer and as i think you cite a case that says similarly situated i also know and andersen versus national grid judge bianco not the second circuit but several district court have recognized  eastern district has have recognized that being honest accepting responsibility for misconduct is in fact central to the employment relationship and wouldn't factor honor in an important factor in determining whether a second chance might be warranted and under  this court held that a just cause finding in an evidentiary hearing is highly probative of the absence of discrimination is a matter under collins that the employee is required is or is not required to go through a grievance procedure before filing a complaint with the division of human rights whatever that division might be in this case your honor there is no requirement that an employee go through the grievance process you have asked the question about the labor contract that is something that mr dig pursued along with the union voluntarily is the same way that he decided to file a complaint with the new york state division of human rights in which he misrepresented the facts  surrounding his use of equipment and what had happened during the investigatory proceeding and in that same complaint he raised the same arguments regarding dispa treatment the same compared to ours and the division conducted a extensive fact finding conference including the questioning of  witnesses with respect to the disparate treatment claimed before the division found so that those are all reasons maybe for or for me in this case but would you answer my questions is a matter whether or not the employee is required to proceed with the grievance procedure under the collective bargaining agreement for purposes of determining whether collins applies i would think that would be a factor and was that because the question then would be whether all of the issues would be something that would be having to be developed you know outside of the title seven context here there was a deterrent there was a voluntary decision to go forward in three different forums and in each of these each of these forums mr de igs was not able to carry his the burden of proof as a matter of fact in the  company had the burden of proving not that there was a reason for his discipline but that there was just cause for his terminations and implicit in the just cause standard is that the employer has looked at its policies work rules and has applied and an even handed nondiscriminatory manner and that's what the arbitrator held in this case and  judge sharp in looking at the record evidence before him certainly found distinguishing significant distinguishing characteristics so as to find that the plaintiff had not carried mean there was is i understand the record correct me if i'm misunderstanding but first it was a taking of substantial amount of equipment a digger truck backhoe a trailer used essentially nuclear land for a week  masking logo so he won't be noticed on the road and he's using the company's fuel cars so he's essentially stealing money at the same time right and if this were limited your honor to the use of the equipment or the misuse of the equipment then that might be comparable situation but in fact mr content acknowledged his wrongdoing was apologetic for his wrongdoing as counsel indicated you know made restitution and there is no evidence that he tried to conceal the misconduct after what's the company had engaged in its investigation and in fact in the company's standards of conduct one of the grounds for  employees who obstruct or interfere or are not forthcoming in a company investigation that's separate and apart from the underlying miss conduct and again i made reference your honor to the eastern district decision and andersen same policy same situation where the employee who had engaged in the misconduct and who was arguing that he was subject to disparate treatment could not show that the other employees had obstructed or interfered with the company's investigation which in fact is you know a critical and sufficient distinguishing characteristic the other thing that is significant in this case is that we have different decision makers in your honor i may have misstated i think the gannon to sets that's what i'm looking at yet i think in ghana decision though the court held as a matter of watch that the fact that there are different decision makers in volved is a is sufficient to find at this you know that employees who in misconduct are not similarly situated here it is absolutely undisputed that the people who are involved in mr diggs is terminations were not involved in any of those other cases i know that there's been a suggestion that one of the supervisors were the same there's no support in the record for that in fact it's not true it's not really about the people that is the specific supervisors so much as the disciplinary regime and i take it what you really are using is that it's sam well maybe you nothing isn't the same disciplinary regime at play here i think your honor at its core title seven and the entitle seven and other types of discrimination cases what is at issue is the intent of the decision maker and the courts have developed various tests to determine how it is that you might infer intent none of those circumstances are present here we the  thing that's critical is what was going through the mind of the individuals who made the discharge decision in this case and they reasonably believed that mr diggs had violated sorrow important work rules but even more significantly that he lied to them face to face when they were questioning him and two or more occasions this is a public utility that has employees who who work with live gas and high energy electricity it's important that employees be trustworthy a reliable and it's certainly fair reasonable for decision makers to conclude that when that trust has been by a lady that discharge is the appropriate penalty and it's not for you know it's the second circuit has recognized  multiple occasions that you know again the plaintiff has the burden of proving discrimination in each of the elements of that and in this case the plaintiff didn't do that and although the judge sharp didn't have to get to this also the plaintiff also cannot establish pretext the reasons for mr diggs is discharge were clearly stated and january eighth when they met with him it was not only the misuse of the equipment but it was the lying on december twentieth and the lying on january eighth the continued line that was important to their decision and that is absolutely that was proven to be true in the arbitration it's not even the speed here mr dix was not asked on multiple occasions and that's the reason why he was terminated thank you your honor so i want to address the issue of intent to the contrary to counsel's position at the time before the arbitration when they decided to proceed with germination the company had evidence conclusively that there was a disparity of treatment between the four white employees and the african american employee and decided to move forward with terminations anyway it was a company decision and you cannot hide behind the decisions of each individual supervisors that they were unconnected with one another the disciplinary regime sought terminations mr content told there's nothing in the record that he was at all apologetic he was ordered to make restitution he didn't do so voluntarily and would the record support the conclusion that council would ask you to reach that mr content is somehow a more reliable employee the mr diggs i do not think the evidence supports that conclusion and i believe there are issues of fact as to whether that would be case and yes honesty is a factor we've discussed that but i think this case is very analogous to the last chance agreement cases which judge  hears had used the word rehabilitation many cases in which the white employees were given last chance agreements and many chances whereas the african american was hit the very first time that has been grounds for findings of discrimination in the past with respect to the new york state division of human rights there is nothing in the record to conclude as to what was before the division and the divisions findings have never a title seven action part of the entire regime is that despite the administrative finding you're entitle to go to the court and have your case heard the comparatives do not have to be identical the question is were under the were they under the same policies they were did they can commit the same types of offenses but the other four committed even far more serious offenses than mr diggs and he was singled out for arbitrary for terminations and in the arbitration hearing the company's position was really no different than what's in the record before you was the hearsay statement of a manager of each are saying that these people are all honest because i basically asked around the company if i use that type of evidence as a plaintiff in this case i'm sure the district court would remind me quite