district of los angeles i think that i'm going to strike the strongest claim that we've made which was to be tally ation and initially judge kronstadt determined that it opposition that allegedly was made by mr scott was not sufficient to constitute constitute opposition what you're retaliation is fairly much tied to your  because he was inquiring why he was not selected to the supervising industrial engineer position and that really is where the crux of this case lies when you're talking about three chali ation he assumes his job on april thirtieth two thousand and seven he does this job rather well i mean he has no complaints then as he gets more accustomed this can be based upon reasonable inference which we're entitled to drop as the plaintiff in this case and the court has to look at reasonable inferences and in this particular instance his and his performance was satisfactory then he decides he can approach his supervisors and inquire why he wasn't selected for that supervising industrial engineer position and they say bring in your credentials bring your diploma will take a look at it so he doesn't joan he submits that and they don't respond well i thought your retaliation was based on the failure to accommodate well that's one it's that's one of the prongs but there's actually two probably your your arguments seem to be a moving target that's why i'm having trouble following them because you somewhat have taken that throw everything against the wall or the kitchen sink and then figure it out but i mean i understood that your argument was base your retaliation argument was basically based on the accommodation from the complaint it appears that scott alleges he was terminated because of this race not because of any requests for accommodation i mean i don't know what what are you well i am having a hard time understanding what you're contending well it isn't my brief because i from it and when we opposed the motion for reconsideration we spent some time going into it and so the inference is after he asked why he wasn't selected submitted the necessary documentation did not get the response that is when it all became the tempest in the teapot they started reacting and they go and it's in the declaration submitted by the police employee declaration of garcia says in or about mid june two thousand and seven mr kelly was the manager and i met with legal administrator advise that was this before or after he told mr garcia that he and sort of and he wasn't qualified for the job that was i mean that didn't seem to start their relationship off to great that came later what i believe was why he felt he was not selected it was more of an inquiry and then in december when he was confronted with his not being qualified for the second supervising industrial engineer position that's when he decided to lay that duty remark but before that he was very congeni asking and he said at that particular point why he wasn't selected and was inquiring follow but they require bring the diploma and bring your credentials and then they have their meeting with margot  administrator for the base and they discuss plaintiff but they discussed his abusive behavior now when you put it in the context of what he was doing the reason we're perception of kelly and garcia was he's challenging that he's a black guy we're white and he's challenging why he wasn't selected for the position so they then go to markham but and she decides that she recommends that they assign a mentor to watch his behavior that mentor was george austin now george austin declared and that he was being asked to do that to monitor his behavior but his brakes time off things of that nature that shows that they he was a plant there to dredge up any negative data when i went on the timeline was austin asked to do that i think it came sometime in july or august but by september he was fully integrated in that position of mentoring but it was definitely after  inquiries about why he didn't that's right and so when you look at the course of events there it looks very logical that an inference could be drawn that they were feeling challenge when he was saying you know i'll bring my credentials then i'll bring my diploma  show you that i was qualified for this position they then took it upon themselves to say that that's abusive behavior although they don't bear market as to what was the actual abusive behavior your client was making these inquiries of garcia and kelly both of them were either of them and volved in the actual hiring to suggest tom kelly sat on the actual panel to determine who was going to be selected and garcia was the one selected and he was the one got elected ok so that's where you take a look at this and it looks like it really parses together rather well that they were actually trying to stop him and then all of this negative stuff developed they took him off over time they made it difficult for him  before who's the remind me austin testified in his deposition that one or both of kelley and garcia said to him basically you know give us all the bad scoop on on your client who is the one who told him to do that do you remember this chrystia of our c e o told me well let me let me get it correct garcia told him that it's what tom kelly wanted him to do but he wasn't saying it was him that was claims what is your client seeking at this point is he seeking to be reinstated is he seeking to have a new job and the reason i ask this is because i'm wondering if this case could be a candidate for our mediation program and you don't need to decide that today but i'm just wondering if this is the kind of case that if you had a mediator help out to figure out what to do if you think that would be helpful i think initially there was a questionnaire about that you know you're getting the ninth circuit and i think we passed on it but i don't think he's necessarily thinking it as an equitable remedy reinstatement but i think he's thinking he's lost some some compensation here although from what i understand and  lawsuit with a previous job right that's correct how that was that that worked out for him he settled it in january of two thousand and eleven but i think at this point and i want to make sure the record is clear that he is making more income in his current position so if he it would be really up to him to see what his damages are to prove those damages and of course we don't deal with those issues and motions for summary judgment but damages would definitely be the mainstay of what he's looking for and reinstatement is an option that the court can look at to he doesn't get to say i want to be reinstated he can request it but the court has the right to say i consider there was too much friction in the workplace to justify your reinstatement and so then you do something prospective with front page for a certain period of time i had one other question for you and has to do with a declaration of and i might be mispronounced the name doctors at quad these what these i think is the correct and you and either now or in rebuttal if you could just tell us tell me where that was in the excerpts of record we had my staff had trouble locating it all right it would be let me see if i can find it and if you want to do it again you counsel was arguing to not bring your give me some time just by the end but why these and then here we submitted that supplemental the court had we had filed our papers the court then said i had to read redraft my objection format it wasn't correct and in the meantime he took the matter into submission we submitted supplemental memorandum with that declaration attached and so so on your client was on probation right and they terminated him before the completion of this to provide don't know if we're going to fight tooth and nail over that but there is this issue and there is no case law in the area that while he was litigating the t s a issue which was settled in january of two thousand and eleven there could that they were aware of their abusive behavior and that was it they were not disciplined whereas my client was ultimately terminated for that very act and so the issue is whether or not probation a probation or does have rights in in the context of this particular employment and the answer should be yes because the master labor agreement permits progressive discipline for an employee who is being disciplined for less than fourteen days of suspension or with a written warning he was entitled to that and yet they did not give him that they use counseling supervisory counseling memos to discipline him which is not accepted by the m l a the person who didn't get the job that this situation was that the best way to start things out well i mean mr garcia beat mister scott got out for the job right that's correct he was selected for the position mr scott was selected for a subsequent position and then came under the supervision of mr garcia and therein lies the problem almost immediately he became very difficult to deal with he was his own supervisor what kind of your grade you have and then claiming that he just didn't believe him based on the look he got he said there was another occasion where he didn't really need his supervisors help but he asked him to help him calculate something just to prove that he wasn't capable of doing it he said he was teasing and he preferred to him as a social studies major and that's throughout the record excerpts of record thirteen eighty five through ninety he didn't like that he was given someone to mentor him he even took on austin at some point who was also african american was a long time supervisor mr kelly his second level supervisor said he very much appreciated mr austin's help and believed him capable of intervening here and making things better  again mr scott says i should have to explain to everyone in the department and i know things better than austin does those are it the excerpts thirteen thirty seven fourteen eleven he even took issue with the union rep that was assigned to assist him in these meetings he said the union rep wasn't helping him and that's a thirteen twenty seven he was just a very difficult employee to supervise almost immediately and the counseling memos that mr fielder refers to were exactly that remember he is at re sharing employee and the master labor agreement that was put in indicates and it's that excerpt six fifty three one purpose of a probationary period is to allow employees a reasonable and fair opportunity to make good accordingly management will evaluate the performance of probationary employees and counsel them concerning performance deficiencies if any during the probationary period that's what mr kelly  do for eight months and we can see by the series of memos that were created from twelve fifty five to twelve sixty two in the record that they are continuously talking about the same things they are asking him to explain what he's doing why he needs overtime and then he responds you should know this is not a workable employment relationship you know i mean you may well be able to persuade a jury of that but we're you know we're not here to ultimately resolve these factual questions i guess on the retaliation claim which your opponent says is his strongest claim and if you could focus there i mean the remark from or the testimony rather from austin seems pretty pretty damning for your testimony from austin right seems pretty damning for your client at least at the summary judgment stage because he says that kelly through garcia basically said give us all the bad stuff on this guy and take notes and that would suggest that they were maybe for the reasons you just described the guy's difficult let's try to get rid of him but maybe a jury could conclude it was because mr scott was complaining or suggesting that perhaps he had been discriminated against in not getting position well first of all when he approached his supervisors about it just twelve position early on he indicated that he wanted another position like that he was not satisfied with the  nine position but a simple inquiry of your supervisors about whether there were other jobs available doesn't mean that you're complaining about discrimination he certainly never used the term racial some why did you initially what was the problem with initially the court left the retaliation in play because of an understanding that you had stipulated that that one survived and then then the so why there was not a stipulation that  what was that initial a summary judgment was not granted on the retaliation and that the judge said something to the effect of that you know it was judge's understanding that you weren't you know you weren't asking for summary judgment on that or you didn't think you thought that this ever taliesyn survived no i believe he indicated that there was no argument so i filed a motion for reconsideration and pointed out that yes we had indeed me that argument we had a hearing additional briefing and each of each side so that it had a briefing on the participation clause and thereafter the judge did rule in our favor and i think it was always our contention that there was no retaliation here because there were but what about the failure to accommodate if he says he assuming he said i've got a problem walking and and then there's the situation of he's having to share the scooter or you know he's claiming he needed the scooter and that the keys were taken away and then so there and there's a there's a sort of a time things are happening in a time sequence that if you give all in princes to the  survives well i would disagree on that point you're unarmed there the retaliation claim would have been based on two alleged theoretically protected activities or at least that's the allegation by the other side we contend that it's not true either it was for the non selection for the two thousand and six job that his supervisor mr garcia received well he never broached that with he never brought any complaint on that he never exhausted that claim so the only other issue we're left with retaliation you could if he indicated that it was racially based or based on some degree he doesn't need to tell the employer though the reason i'm making these inquiries is because i think you bastard discriminate against me on the basis of race he just needs to make inquiries right that would put the employer on notice that oh this person might you know be thinking about pursuing a claim well his inquiries though if you read them in the context of his declaration he's trying to get their assistance to get another job and he admits that he says he didn't want to make anybody angry he wanted to explore whether there were other jobs that were available to him if you look at the declaration of miss weiss she explains that there was a lot of downsizing going on and certainly there were positions that were never filled in fact all of these people were hired in a very short sequence of time mr kelly was hired in two thousand and six he hired mr garcia the following year and also mr scott so they were all hired within a very short period of time they are all now gone and their positions have stayed unfilled mr austin in fact has been promoted to be the head of that's ok but so am i i'm not sure why that's of any relevance actually i'm saying that to you because this was a cooperative effort to figure out if there were other positions available to him it was not his indication that he felt he was being discriminated against or so but i hear you but you know i just make sure i understand your your argument are you saying that he never when he made these inquiries at the outset that he never suggested that hey i should have gotten that job because you know i'm qualified for no he did not other than to say to others that he believed mister garcia was not qualified for and i think there's lots of reference to mr garcia got the job that he writes a while and then he didn't want other jobs that they were looking for he wanted that specific shop so why can't you make why don't just don't they get the reasonable and princes there because there was a process by which mr scott was selected for that job and he and mr and mr garcia was selected for the job mr scott was not able to show in any way that his qualifications were better or that there was any reason for the hiring of garcia so that's might why you might went on the discrimination but that that still doesn't handle they were tally ation well let's focus on that and the things that he claims were retaliatory he never made a request for an accommodation in this case and he admits that if you look at his declaration i mean his deposition i deposed him twice and i asked him and he said no i never asked anyone for accommodations in his declaration a few changes that testimony that's not enough to defeat a summary judgment motion and he even then doesn't give us enough to conclude that he asked anyone for reasonable cause let me ask you this just trying to time the time line he asked he mentions his leg hurts and he asked to use the cart and i know there's some dispute as said how frequently he was the last use the card or whether he had sold control of the card or other people have the card then austin is assigned to watch over him is that the correct timeline austin was assigned in the summer of two thousand and seven he mr scott was not clear about when he made any of the requests use the card but the indication is that it was throughout that everyone in that department the ten to fifteen individuals who were there all needed but i mean what is there is there some evidence in the record to suggest that his request to use the car was before mr austin was assigned to look over his shoulder there's no specific date but my sumption is yes based on the deposition testimony it was hot it was barstow california it was one hundred seventeen degrees you mentioned a couple of times in his deposition  i needed cart it was hot nobody wanted to walk and that was really the issue here but if someone you know so if you're the that side and i'm pointing for the record to mr scott's side if their theory is that my client said he had trouble with his leg in fact they gave him special shoes to do his job and then after he made that request there was some dispute over cart usage and then mr austin is assigned to basically look over my shoulder to try c v they can get me fired dispute over the cart whether you got enough users of the cart and then austin is assigned to using their their version of the case find out a reason to get him fired if that's the timeline then why doesn't that go to a jury she was jobless retaliation he has to show that he was engaged in some protected activity right and he saw it so presumably his his saying my leg hurts i want to use the car wouldn't that be protected activity that would not be protected activity protected activity unless he's indicating some good reason for requesting that kind of a call and he got that he got the special shoes correct everyone got special shoes everyone that worked there got the steel toed shoes that was a requirement that's in mr kelly's declaration mr scott indicated he needed a lift in his shoes right and that and that was done ok so that's a special shoe compared to what everyone else gets they all go to there is explanation of this in the deposition that they all go that this cart or van comes every couple of weeks everyone goes out to do that i'm not even sure that mr kelly was involved in that additional part of getting a shoe so to mr kelly's knowledge he was getting shoes not i'm not sure that it's ever been clarified that he knew that there was some additional lift required much i thought if i'm remembering austin's deposition testimony there was at least one incident where i don't know if scott was running late he was taking a long time in austin today maybe i should go get him on the cart and i think it was said no you don't need to accommodate him it was literally that so austin's deposition testimony is framed again why wouldn't that be a suggestion that at least someone on your client side was aware of the fact that he needed an accommodation they were basically dead set on not margaret well again the use of the car seemed to be an issue for everyone in the department it was regularly and that's in the testimony of mr kelly it was regularly an issue who had the cart keys were taken and kept by certain individuals the others then took them away from him at some point because they thought he was i mean the airports would be that he was sort of he wanted his own card and so he took out they took i think it was  that now whether that's enough to make the rehabilitation but you know with the timeline isn't it possible to say well he was asking for this just for himself because he needed it because he had special problems and so they took the case away from him but there's been no showing that garcia knew he had a special problem or that he needed the cart for a particular reason other than that he just wanted a cart he made efforts to take carts from other places as well and other departments would come and request the keys for the carts it was a running problem in the department but what about what about that austin made the comment yeah he needs the car or something austin's testimony is difficult to use in this case there was different testimony at different times during austen's deposition become like added austin not really testify specifically for anyone you just told the truth he's not her for you he's not perfect for this you know mr scott but maybe he's maybe austin is the one that's telling the truth and then the court does not have the benefit of the entire record of austen's deposition testimony that our problem no and i did not reference it because there was difficulty gaining his deposition testimony and it was different than just than the information that had been provided earlier point you've used your time but if either my colleagues have any questions all right thank you for your argument thank you to answer your question just so on i was able to locate the declaration of good ideas so could you post argument submit a letter to the court once you're able to locate where it is in the record on that it's not located in the record oh it's not in the record anywhere not in the record it's in the record of the district well that's fine that's i mean it's part of this court's record may not be in the excerpts of record that submitted to the court of appeals but it is part of the yes the court record ok if you could submit a letter to the court so indicating where that is by docket number that would be helpful ok all right thank you i'll do that and then just briefly and we yes if you could do it within a week that would be great a week yes it's not going to  months all right thank you with respect to the common police council he wanted to use the green card which was designated for the engineering department and when they took the keys away when mr garcia took the keys away he then went to his billy cunningham who's the installation logistics department supervisor and told him about his hip problem in getting around and walking and cunningham allowed him to use the grey card at his department so he was trying to find eventually the grey cart went away and so he was left to walk and i don't know at this particular point it seems that there was some orchestration going on to try to scare him away to get him to leave and that's one of the reasons you make it difficult for the person to do his job you criticize his job performance your column abusive and then you terminate them and i think that's a sad