this case is about norman dillard an african american career hospitality professional who rose through the ranks at hilton hotels to the director level position as director of food and beverage just one step below the general manager position after a brief stint at another hotel mr dillard was hired as the director of food and beverage at the hilton orange county in that position he was one of only two african americans at the management level and the only african american at the director level mr dillard had a record of performance receiving the highest ratings possible from his immediate supervisor the general manager kevin kennedy indeed his performance was so good he was on the shortlist for promotion to a general manager position in national list however as mr dillard's evidence shows this changed in the spring of two thousand and thirteen when a new caucasian director of human resources started a campaign against  i think i see where you're going but let me just ask it directly is your theory let's just focus on the race discrimination claim is your theory that kennedy himself was motivated by racial animus or rather that his decision to fire was influenced by this person tell me if i'm wrong on this i seem to recall that the context of those remarks was along the lines of when you get promoted because everyone knows you're kind of on the fast track so when you get promoted there's going to be a vacancy and boy i sure would like to have my friend come in and fill your vacancy once you get promoted but you know that that overstates it a little because it was when you're gone and you can also did follow up with mr dillard and said it is one of the ways that you could be gone is that you got promoted but it was not that she said when you're promoted she said when you're gone but where's the racial animus on her part i mean i think you have a couple of hurdles here because it seems to me that mr kennedy was the ultimate decision maker but i understand that you're trying to say that he was influenced by mystery i think that's your theory is that correct well that's part of it but we also believe that there's a tribal issue in fact whether he was in fact the the actual decision that well he signed off i mean ultimately he signed off on on the document that said that the terminations i guess after the pip and he was confronted with the with the in deposition i mean he acknowledges that he was told that mr kennedy was the decision that he and he was not privy to but so then let's look at mr kennedy w that is correct and again i mean we are looking at the totality of the circumstances and we believe that it is a combination i mean if the jury were to decide that it was s he did hire mister mr dillard but there were no other african americans mr dillard was presented by the vice president the most fruitful avenue for you to pursue here an argument to try to say that mr you have evidence that mr kennedy himself you know was motivated by race and deciding to fire you had alluded to though that there was some i guess some broader corporate the director and for management employees of whom there were forty four there were only two african americans ok and so what is that i guess i'm just trying to figure out what does that show in terms of why the decision to fire your client was motivated by race because we don't know a lot of the other facts contributing to this is the to six i mean we don't know in orange county how many i mean do you even after americans reside in orange county how many would have applied i mean there's all these different factors that are on known and so we're supposed to you know kids consider that take that into account as well i understand that your honor and we don't contend that the statistics in of themselves are enough to raise a tribal issue about who gets on a performance improvement plan your clap was and then valon the performance improvement plan he approved of apparently approved a fraudulent transaction by one of his employees per performance actions demonstrate some sort of pretext i think that was long lines with which wofford was asking about but then it seems like you have to stablish that based on your theory and then you have to also show that somehow she influenced mr kennedy and i looked over the record i'm trying to see how she influenced mr kennedy in such a way and so on that this is your opportunity to give me your best and with respect to the termination she was the one that drafted the  turning to mr dillard and i've already gone through who's signed it for for example with the performance improvement plan that you raised even though she's the one that drafted that it was in mister kennedy's name there is not a scrap of documentary evidence that mr kennedy was involved in the decision to terminate  dillard mr coleman vice president human resources nationally testified that ms diller did have the authority has director of human resources to make the termination decision even o not relevant that mr kennedy strongly supported mr dillard i mean by hiring him he promoted him subsequent to his term nation he also was strongly supportive of him and just i'm having trouble were in my shoes would you hire him and he said yes so it is so this demonstrates that at least an inference that what he was there was racial animus or he somehow dillard was put on the performance improvement plan they had warned him they'd given him you know specific indications of what he needed to do and then there's this issue with mr turner i think is josh turner the employee of smith  you know and that prove all of the fraudulent transactions after been specifically told to look out for those and then it looks like the situation regarding this other general manager  was in a different situation i think he's starting up the earth some question whether it was a new hotel or a hyatt hotel or not but it just seems like mr kennedy was still supported that had to do what he had to do in light of the potential consequences for mr kennedy if he'd kept mr dillard on again i believe that those are inferences that a jury can make but the jury could also make a reasonable in juncture in opposing hyatt's stated nondiscriminatory legitimate reason to present not just any evidence or any kind of inferences he has to present specific and substantial eviden me ask couple questions there though because i found it interesting that does the record flecked that there was anything more than one hundred fifty dollar charge by mr smith that was fraudulent i mean it seems like there's one incident here and that's regard to mr smith i think that that's correct that there were there was that things that he said were not business related then there were many transactions he could not justify its being business related so there's two different aspects to it as to mr dillard the evidence show that he by his own admissions both to miss turney and to mr kennedy and in deposition testimony that you see failed to adequately supervise he never questioned he never asked for receipts he merely accepted it at the representation but it appears that mr dillard raised the issue of mr smith's piece picart in the first in the first place to mr kennedy so  but well i'm not sure that's correct mr they learned from that they wouldn't transactions in hawaii and mr kennedy then just discussed that with mr jailer and this attorney and told them to investigate but the investigation revealed this pattern of of nonfeasance or malfeasance by mr dillard where he was not monitoring these transactions without regard to the amount of the loss and without regard to whether the transactions were legitimate or not there were thirteen thousand dollars worth of transactions and mr dillard's statements and testimony demonstrated to mr kennedy that mr gillett was lacked financial control over his subordinate that was the business w but a lot of mr smith's picart use occurred before mr dillard was put on a performance improvement plates right in the two things are not connected but plastered mr wells somebody said they terminated him because of the lack of supervision of the picart so that how come you know one hundred dollars one hundred fifty dollars of subordinate's misuse justifies terminations someone who's been receiving such high performance ratings prior to that that's not what mr kennedy explained in his declaration that support of the motion he based the decision upon evidence showing that for a long period of time mr dillard had not been adequately supervising the p card usage by verifying receipt and verifying the purpose that would have been and i i can go a little bit beyond what he's saying is he's not saying we suffered a loss he's saying we don't have control in our department i have a director in charge i have a subordinate of him who's using the p card he's charging over thirteen thousand dollars and mr dillard is not managing that process affectively without regard to whether there was a loss and there's still question t mr diller had adequate training for that what's your response my response is that in the papers they were there was an argument made below that he was not trained in using the p card and that's not the question the question is whether he knew and understood he had an obligation to have financial controls and to verify how the p card was used not the p card procedure itself and he had an obligation of the hyatt business ethics policy which  spells out the obligation of someone in mr dillard shoes to actually scrutinize the receipts themselves that's right there's no in those policies right so just let me make sure i've got the facts straight and as i understand it the the subordinate's use of the card there's some notation that the subordinate needs to make for each charge like explaining i don't know what the purpose of the chart it was that's right and mr dillard said he did for most of the transaction scrutinize that but mr kennedy as i understand it faulted mr taylor for not doing was going further and not just sort of taking the subordinates word but rather let me see the documentation so that i can verify that what you're saying that phrase lightly it ok so why isn't there a factual question as to whether in fact within this particular hyatt that was mr taylor's responsibility as opposed to say accountings responsive they have not raised they have not presented any evidence that it was not mr delivery sponsibility mr dillard testified in deposition  know just give me a moment please second e r three thirty one you said i'm sorry skip that site ok give me the other one e r for twenty eight line eleven through twenty five and page four thirty line three through eighteen of the following that he knew and understood this myth was supposed to use the p card for only hotel expenses and had this of it if you see for every purchase and write a note in the reporting system explain hang on let's just look at since you gave us this responsibility to supervise or review his use of the picart answer no did you have an understanding that somebody would be responsible for that yes who did you understand would be responsible my initial understanding was that all of the receipts would go to accounting and that i would receive an electronic verification with back up on the exact charge that doesn't sound like he's acknowledging that he thought he needed to review the receipts it's well if the next page page for twenty nine there's evidence that he knew and understood that he had to yeah sure if you approve that there would be a problem but presumably smith was giving some you know i bought supplies for the company whatever and so as i understand it dillard said my duty to supervise my subordinates use of the card ended when i verified that the notation was correct in terms of the back of the receipts that would document that i understood accounting to be responsible for that i'm not sure that's exactly accurate if you go to page four thirty five ok i line twelve through twenty one and for thirty nine it eighteen through twenty one mr gillat testify that after smith got the p card that mr gillett asked for an explanation and the receipts for his purchases and that after the initial purchase the c stopped requesting smith to submit receipts and never took any steps to verify that the expenses were for legitimate purposes so it's true he may have looked at what mr smith notated but he didn't go beyond that to verify by looking at the receipts or talking to smith or do anything else he took at its face value when mr smith made a purchase and put a note in he accepted that he didn't do anything else that was the failure to exist to maintain control over the p cart he merely accepted mr smith putting in the electronic system and he didn't do anything to verify  but his position is that i was never trained to do that i was never told that that was one of my responsibilities and yet the proof written policies at least that you provided us don't say that it was his responsibility so isn't there a factual dispute you've got kennedy saying that he thought it was dealers responsibility dillard saying they never told me that why isn't that for the jury had resolved because the well summary judgment we've proffered a legitimate that's a legit the mr kennedy's explanation that i lack confidence or found that he didn't exert control that's a legitimate nondiscriminatory reason the question is not whether it was wise the question is not whether it was correct the question is is there substantial evidence specific evidence showing that that's a false reason or that that reason is not worthy of credence yes because if you credit the plaintiff's version of the facts which we have to answer every judgment he's saying that i was fired because i didn't verify the receipt that's the problem that can't be identified they never told me ever they never train me ever that that was my responsibility i look at the written policies or nothing in there that says that's my job as opposed to accounting and so then we have kennedy on the other hand saying well i have a different understanding so i think though the burden of this point and summary judgment is him to show that that the reason that mr kennedy gave was not mr kennedy's real reason that mr kennedy was using that reason as a cover up for a different reason which was discrimination there is no evidence that mr kennedy ever told anybody he had a different reason there's no evidence that he ever express any racial animus and m diller cannot raise a triable issue under the ninth circuit case as he cannot raise a trial issue by questioning the wisdom or questioning the judgment of mr he's not he's yes you know he's you know he's not he's saying it's not legitimate because they nobody ever told me in the company that this was my responsibility my understanding actually was to the contrary it was a county's responsibility well so i keep saying that he wants to resolve that factual dispute i think he's saying it was a county's responsibility to collect receives he testified and it's in the record he knew he had to look and he had to approve so he had a function he knew he had an approval function so he can't deny that he had a role in picart process he's not he can't say long as there was an appropriate electronic note of note notation that's what his role was limited to and if there was well he's not a mechanic it's not a mechanical function he's not just doing a clerical function he's the director of the department there are expenses being made on behalf of the hotel and he testified he knew he had a responsibility to ensure that the p card was being properly used and proper use requires him to look at the transactions and to ask about them not merely to click a box saying ok that's what he had judgment he was that he was the director he's not a clerical employee he's not an accounting clerk he's a director of an apartment he has a credit card of the hotel in the hands of a subordinate who's charging over one hundred times over thirteen thousand dollars and his responsibility as the director which he acknowledged was to maintain financial controls in his department how about the manager at the other evidence to show that the cement that was a similarly situated person he identifies a person who he said he thinks was not disciplined but he has no evidence that the person wasn't disciplined and he has just to let me give you my version of facts and you correct me if i'm wrong i thought the terms of this other person it was that that person subordinate misused the card in some fashion and got fired for that wrong no no he said to the subordinate at that hotel got fired supervisor the person analogous to mr dillard did not get fired for having failed to supervise that person's use of the card right that's the argument but the problem is there's no evidence it's his testimony he says i was at the other hotel no no he was not he didn't say he was at the other hotel he heard about it i thought he said afterwards he went to that other hotel and the guy was still there the manager was still employed there hadn't been fired i'm sorry your honor that's no that's not what he said he's he identified what happened at a high bourbon hotel mr dillard never said he said he went to work for the hyatt irvine hotel ok and the district court addressed this issue and i guess my only response thus response i could do is just quote with the district court said which is that dilute states there's no evidence dillard asserts that in a different hotel a caucasian supervisor was not terminated for the director of engineering is misuse of a fee card however the employer to to look in pairs themself worked at a different hotel held a different position and reported to a different manager dealer does not offer any evidence regarding the nature of the violation whether the other employee was responsible for overseeing the use of the card or the discipline to which the other employee was subjected because he's not shown that he was similarly situated the other employee the other employee cannot be used as a comparative so there just simply wasn't any evidence and isn't any evidence of the record where fairly compare himself to somebody else and i should also point out the different decision maker wasn't mr kennett he's talking about he's not saying canada treated caucasian employee differently than me he's saying somewhere else something else happened differently than what happened to me very quickly your honour's with respect to the issue that the judge watford was just raising in fact it was the written policy that the receipts would go to accounting and that's a yard to eighty three and that's case there were also issues of there was an alleged fabrication of documents and not properly supervising subordinates and the company paying too much money conducted by a fact finder upon a full record and i would just add that he here in the twenty first century some employers have become quite sophisticated at hiding lawful discrimination so it's best when the decision can be made