and doing the reply brief i had a mystery to solve the mystery to solve was in reviewing the district court's decision why there was no legal analysis in interpret ing the facts that were presented in the motions for summary judgment and in reading the discussion of the decision of the district court i noticed that  court weighed the credibility of the deposition testimony of all the parties and chills to believe the moving party namely cosco and their version of fact in so doing it invaded the province of the ultimate fact find that the jury in this case there was a couple of sentences in that decision that also evidence and presenting a nondiscriminatory and the plaintiff at that point presenting some evidence or argument indicating to the court that feed reasons were pretextual let me tell you what the problem i have with your case who's tom vrba tom verb it is that an individual who had he's the general manager of the summer warehouse he is the individual that worked with mr beverly at the time that mr beverly was promoted to the floor supervisors position riverhead her above promoted beverly in ninety eight to a supervisory position he did verbal promoted beverly in september two thousand and one to assistant run and manager he did it twice promoted him i had a case like this some time ago bradley versus harcourt brace and pretty much it's as if somebody has hired you or is promoted promoted you it's awfully hard after that to say say that when he fires you it's because you were either african american or whatever because if he had those kinds of problems he even never hired you in the first place and here bertha is the one who investigated all the complaints of inappropriate behavior with females he's the one that made the decision to terminate and so i mean it just doesn't fit and that's why the district court was looking at the facts here to see whether that was enough to create a genuine issue what just what a judge does  looks down the road takes a look at the facts and says if a jury were to come back with this verdict with what i supported the answer is no because verbalize seems to be this guy's a supporter until all these complaints start coming out of inappropriate explored the human factor the motivation for hiring people firing people may or may not have anything to do with race they're a numeral anecdotal evidence is of individuals being hired because they are a token minority whether this happened initially i do not know because that was not presented to the district court but to assume that an individual hires a minority means that he does not harbor any anim discriminatory purpose would be to forget that people are hired for for what numerous case flow shows is reverse discrimination that they are hired because they are a min that is just a racial animus just as discriminating against somebody where's the evidence of that i mean if there isn't there is no evidence either that burma ever even made a straight comment of the kind you read in these cases that's right and there is no evidence that he hired him because he was not a minority or that he hired him because he was my there's no evidence on that so for your honor to take sounds like the argument that you know somebody says this is a conspiracy and somebody says there's no evidence that it was a conspiracy and somebody says well there's no evidence that it wasn't a conspiracy and we have in the fog and that's what the district court said here and we have to build the blocks in the blocks that we have to build as we have to take a look at the entire case and the entire situation it's a tru take the failure to promote him in the henderson warehouse to a bakery manager position his complaints complaints from white females to the warehouse manager in henderson the warehouse manager  henderson asked mr beverley use the statement of facts and does an investigation the result of that investigation is that these are three white females in the bakery department deliberately undermined  or actually state that they just did not follow the ship and yet he testifies that he didn't consider that insubordination insubordination is a ground terminating an individual and the cost of those employment policy these three women these three white females that we fused to work quickly reached used to show up for a product change in shift are not insubordinate yet and they don't get punished they don't get disciplined what happens is mr beverly has called that of the a better manager so we're going to have you we're going to have you  take some courses when mr beverly applies for the bakery manager position one of the assistance of the reasons for not promoting him to a bakery management is because of his perceived problems with the three employees that were not  example there's a deposition of linda patterson that at age four sixty three of the record on appeal he is mr beverly tells this individual in the customer service department while he's working at the bakery  if there's any complaints about big goods from to the bakery we can take care of that situation there is totally contrary to cost goes then policies about handling complaints this lady linda patterson complaints oh my god he's having me do things that nobody else has asked me to do in thirteen years and actually that's what her death additions that and she started complaining about her clothes the cold was because miss the beverly had asked me in the future this patterson testifies it pays for sixty four to record that month and a half later he calls her into the office and asks if he if she has a complaint against mr beverly and she's basically said that it was too far to walk back to the bakery and that was an inconvenience at that point she is asked to sign a document that the everly had acted in conduct unbecoming a supervisor or manager so now we have a situation where while he's working at the bakery he's got into relations with other employees he is then suggesting a procedure that ironically mr patterson testifies later run at page five eleven on t of a conspiracy so to speak that raises a question of what is actually going on there the fact that the white females are not are not disciplined raises the question of why not and then the puzzling matter with this purpose of to age is that mr beverly who was such a terrible employee that he couldn't be of a three manager once he goes back to his this position as a floor supervisor that promoted him was very well aware of at the time of promotion what is that race does that raise an inference that he was hired because he was an excellent employee when he's being fired because he's not an excellent  i've done some employment law over the years particularly workman's comp and strangely enough to move out of the public policy that you can't fire anybody whether making a worker's comp claim or firing them for making a worker's comp claim ironically and strangely enough after the claim is closed people get terminated and there's always the justification you were in a good employer you lately have complaints so let's look at the complaints and the reasons for the termination she says that he's writing me hard he's he's he's giving me a hard time when she is reinterviewed prior to the situation it's made to terminate him she says things are fine it's improved i guess he realizes i can do my job yet these are the things that are being used against him to terminate him after he gets his right to sue letter now granted each separate occasions each separate incident by itself might not raise the inference that the whole thing was a pretext but if we look at the totality if we look at the progression if we look at the circumstances they're saying that they fired an individual who they had promoted because earlier on they refused to promote him because he was not worthy of a promotion makes no sense the the justification makes no sense in addition to the failure to get the bakery job mr gregory i'm sorry mr beverly did also not get any of the open management positions that were opened when he was moved to the bay from me and that raised the question because the individuals that were promoted during the same time period held the identical position that floor supervisor at the time and he expressed an interest to take any management position and at that point missed its music said well that's the only thing i can think of as the bakery manager has informally other other positions that were open he doesn't recall if they did mr beverly just says i told them i'll take anything as issue then management so there's a there's a there's a question of it will for the record at least that's the depositions that part was missing that's why i initially started out it said i had a mystery to solve why all this happened and why this was all done but what was interesting is what the district court did with that the district court looked at the shuffling of the managers and did not recognize that the managers that was shuffled came from the positions that miss the beverly held before going to the bakery out about discrimination claim made against ten yeah she yet missed the ten yes she got to stay in the in the company and was moved to different locations this same individual was a floor supervisor as mr beverly for two years was promoted to a membership management position while miss the beverly was in the bakery and the best that missed this music could explain why didn't he offer him that position was that while he was in the bakery he was moving on track in that direction that's not what mr beverly testified to testify give me any physician that's felt that the positions that are open he doesn't get even though at that point he would have been qualified for the i'd like to brief general comments to place this case in a proper legal and factual context the ninth circuit of course has been very aggressive in recognizing and protecting the rights of employees to be free from lawful  and harassment claims where the plaintiff presented evidence that he was subjected to a racially hostile work environment over the course of fifteen years which included the most vile racial epithets it included subjecting him to safety problems on do was subject to that individual to live discrimination cosco could not agree more with the word the goal that these cases represent that's why it has a policy against harassment in the workplace on any on lawful basis and why it has a procedure in place to give employees who believe they've had problems in the workplace the right to complain and the right to get those problems corrected however first and foremost because in contrast to all of these cases the sum and substance of mr beverly's evidence and i use that word in quotes that race played any part whatsoever in the employment decisions he challenges are just for comments made over the of course of his nine years of employment at costco and the court of course knows these from the record but i'll just briefly summarize them the first was prior to one thousand nine hundred sixty so literally six years before he was terminated from his job one former supervisor in the juneau alaska store made a comment about cleanup work being appropriate for african american employees not a good comment completely inappropriate but something that was old business and that mr beverley did not complain about through the procedure at costco the second for any showing of any nexus to that this was absolutely not a run of the next comment it was  comment by angela tippett oh who was the bakery manager when he was the supervisor she said she would have to be married to an african american gentleman at the time she made the comment mr beverly claimed that african american men hit on her all the and that off the cuff comment which i'm sure was intended in friendly way and was intended as a facetious comment because mr berg is not african american and that's the sum and substance of any evidence regarding any race discrimination or racial comments in the workplace at hospital between jewett alaska henderson nevada las vegas nevada and summerland nevada over the course of nine years more importantly there is absolutely no evidence of mr beverley admitted that neither mr slice it or that both mr snyder and mr byrd actually to a positive actions on his behalf on the job before they took the allegedly negative actions of the negative was because the government tried to cover up something negative and he was he was promoted think as a token and then he was promoted in spite of the complaint the to the e e o c that he made in february of two thousand and one and yet he was not promoted because he's african american and he was not and he was terminated because he made the complaint to the e e o c so it's it makes absolutely no sense and there's no evidence they could any causal connection between those that so mr snyder if approached mr mr beverly and said you know there's a position in the bakery bakery supervisor of the dish and yes for the moment it is a lateral move for you but it puts you on another career path and imminently leaving the company so you got a chance to go through that and on that career path they make more money faster than you take on a career path you run up the beverly accepted the job he's a grown up he could look he looked into the job he decided yes this is something i want he took that job in about april or may of two thousand and five that was something positive then we have the problems coming up with the other employees the problem that mr beverly had in every supervisory position that he had which somehow were the fault of the the white females or the two white females or the one white manager later on even though race was never mentioned in ages never mentioned in the of situations but to get back to my point and i do have a point in this case there is no evidence of race discrimination that there certainly is not even that the specific and strong evidence that the court generally requires to beat summary judgment there is by no stretch of the imagination mr beverly or great as he was called you you need to make a commitment here because this is a job that you need to learn and you need to make a commitment in order to go up that is that that the past mr beverley accepted that he did not in taking that job say i'll take for a while but if something else comes up please consider me for that he did not say while he was in that job please consider me to one of these other jobs that open up in the front end or in the other aspects of the store and in fact those jobs according to the record came up almost immediately after he went into the to the bakery job in the june time and can do a lifetime to so he was well as cost in that position he was at that point he was performing adequately in that position there was no reason to move him to those other positions for that job in any in any objective sense those were rational reasonable nondiscriminatory decisions made based upon the group of candidates for those jobs mr beverley had the accepted that they can really position and not correct but there is no indication in the record that the selection of the individuals who were selected for the two actually the two managerial positions that came up was a pretext for race or that that movie actually i guess the argument of mr barely that moving him into the into the bakery lead position somehow was part of this conspiracy to get him out of the way so that we could promote all these white people there is nothing in the evidence to suggest that nothing any evidence whatsoever just very accepted the job of the saudis with respect to the the promotion for the fakery to the bakery manager position it really was unclear to me from the the the priest whether that's an issue that mr beverly is pursuing but i think it was brought up in the answer to the so let me just if i may say briefly that there were numerous legitimate not discriminatory reasons for taking his father over mr beverly she worked for costco longer for years she's reasons absolutely no evidence that race or age played any part in that piece in that decision just one one point with respect to the problems with your government had in the bakery department before that d c community council talked about that a lot and the three white females who complain the fact of the matter is there were complaints received from individuals in the department just as there always were complaints by any subordinates of mr beverly throughout his employment anyway when the company received those mr beverley not forward with written complaints about mr beverley yet again that mr burke talks to all of them that mr berg obtained from them statements that they endorsed and that he included in those statements exculpatory comments of mr beverley as well as comments that you gave him responsibility for violating company policy he followed the procedure in providing all of that information to the appropriate decision makers a meeting was conven upon the e e o c complaint that mr beverley had filed more than a year earlier in february of two thousand and one and there also you have the intervening positive actions saying that he was useless or worthless if by any stretch of the imagination but we do adamantly deny that he ever discriminated retaliate retaliate against mr beverley or that he was harassed on the job and it's clear from the supervisor who was promoted and who was also caucasian and thirty in response to the question was there any reason why craig was not considered for the assistant front end manager just in the fall of two thousand  beverly however mr beverly specifically testified that he advised mr snooze if that he was interested in any upcoming management position was told that this was the elbow and strangely enough all these manages to get shifted after he goes to the bakery we don't have direct evidence we don't have a smoking gun and this is primarily circumstantial it's an explanation that should be given to the jury it's an explanation as to why has this happened stance occurred mr beverley also testified that he had conversations with  peterson who was in this distant warehouse manager that individual told them that there were no african americans as managers in response that i conversation with mr peters in the city going to be the first one so we have at least some evidence in the record that as far as cosco was concerned at that point when mr beverly was seeking a management position they had no african americans as managers that he expressed an interest to take the management position that he's given a lateral move and during the lateral move these positions open up to happen to be filled by white individuals white males and then after he makes a discrimination claim