allowed in title seven cases and as a result because they were court trials what the court did was it said that plaintiff has the burden of proving his prime facie case but the defendant only has the burden of coming forward with evidence but has no burden of production has no burden of proof whatsoever and then the plaintiff has to prove that by preponderance of evidence that there is pretext or the explanation given is pretax that was fine when we were talking about court trials but i think what courts have done is they've continued to state that in fact the judge in this case stated that the defendant only had a burden of production and did not have a burden of proof it's probably not that significant in this particular case but i think this is an opportunity for the court to clarify that in the summary judgment stage or plain it has to do is raise a hero issue of fact in that with respect to the promotion claims that plaintiff has two of the promotion claims that he has involve positions that he applied for many many times there's a history in the in the brief which of course we can go back that far and recover from incidents that happened in two thousand and ten or two thousand and eleven but it just shows the history of how he would apply for positions he complained that no blacks are getting these positions he applied again for the positions and he still would not get the positions for various reasons and for what we can consider as  pretext reasons and when situation he was listed as th in the line of progress and to receive the promotion when one of the people dropped out he should have been moved up to number three and was not the nd time when he applies what they do is they say well there's nobody in the application process whatsoever who's qualified and so we're going to have to go outside of the agency to find somebody which to me was just an excuse not to give him the position then when they went outside the agency they said well look we're hiring minorities they can't be discrimination but the hiring of minorities doesn't insulate an employer from discrimination an employer can skin prefer any number of minorities over other minorities in fact even with respect to blacks and employer can we prefer a female black over a male black or an employee can discriminate against a male black versus the female black and it clark and prefer a person from africa and discriminate against a person who's african american or the vice versa so it doesn't fit into a neat box like that and the last promotion position that he has he applied for the position using the same application process that he had used countless times before this time the excuse was that we were not we were not aware that you worked for king county before and that at least this particular person who received the application also was not aware that you worked for king county before it's possible that that's true but it's also possible that it's fiction it's also possible that it's a pretext because she specifically stated that she did not know that mr brown had filed discrimination claims before when in fact she was instrumental in responding to those disc discrimination claims and there's evidence in the record to that effect therefore there is a material issue of fact as to whether or not her explanation for why see tonight and the position was address but in these discrimination cases there are often issues about whether we look for but for causation or if it's enough if a factor or if something like race is one factor to consider as opposed to a but for cause and my understanding is the supreme court of the later this month so my question is should our panel defer ruling on this case until we see what the supreme court says i don't think so your honor and because we state claims under washington law and washington law has made it clear that the but for analysis is not the proper analysis i realize that under the washington law against discrimination it's not but for causation wait for the supreme court and deal with them together the and that i've argued repeatedly that we should not split claims again obviously argue against what you just stated but let me make a comment about the the case that you refer you may be right but the supreme court is going to take up that very same issue in the one thousand nine hundred and eighty one race discrimination case whether but for cause ation is the test or whether it's a substantial factor so wouldn't it be prudent to hold the entire case yeah i can't argue against that because i've argued that before so i would agree that it would be prudent not split the case and wait for that this is particularly for the retaliation claims ok thank you and i do want to reserve five minutes of my time nobody saying thank you i didn't mean you had to terminate your argument you can cover whatever issues you want to cover and w then give you a rebuttal afterwards with respect to the claim that plaintiff was entitle to remain in the technical training position for the acting technical fenice explanation for why he was removed is clearly pretext or at least there's a material this is a fact where a jury should be able to decide whether or not this is a pretext because the position had never been split before they they put an announcement in the bulletin that mr brown had received the position in order to get the position they have to give him a computer access a computer code they have to change his email address you would not do all of that for position that you were going to split and a person was going to be in only eight days in fact the other person who the position was put with was rejected he was specifically sent an email saying that he didn't get the position so their explanation that this is pretend that this is real is false and even if it's not false they're still material it is a fact as to even if there was a legitimate reason for splitting the position whether or not they were still retaliating against  the the office of civil rights found that it was retaliation and then he submitted a declaration in support of the most or for summary judgment basically saying that he was not looking at the federal law he was not looking at state law when he made his decision but that can't be his his job is to enforce the laws at that as they are laid out by the courts and by the washington so it doesn't make any sense that there's no material is of fact on the position and yet an independent body found that there was reasonable cause to believe there was a violation of the statute it was the broker of a similar question to a way as you eventually and that is on the retaliation claim am i right that that as well as the discrimination claim couldn't vote with an issue of but for versus you know one element causation should that retaliation claim definitely be held for the african american owned media case i would agree as well except i didn't know whether or not we were going to get a nd opportunity to argue the facts of the case and so that was the reason that i was bringing this up well you have no idea i think the panel wrestled a little with whether to vacate argument and wait until after that case but decided it would be better to have the case argued st and then deal with it later i'm still interested in whether there are any sound reasons to try to carve out the be a lady claim where is looks like there was an error and split the money advocate needs to use up every minute a lot of to the anyone wants to sit down the panel will be happy but we do want to let everyone are you their clients case honors i'm john's honest i represent king county in this case of a cut to the chase for a bit of i have the same question for you that i asked mr park that is shouldn't we hold here before the supreme so it doesn't really matter if it's a but for standard or some other type of a standard he basically found that it was not a reason at all i'm more than happy to talk about the a t t position but i don't think that  it's necessary i think that the that decision can be affirmed even if the th circuit's decision is up  pretextual how just how does it make sense to put somebody in a position for eight days during which time he heard his declaration didn't gain any of the skills that would put him position that's really what this looks like it doesn't look like retaliation or discrimination for a couple of reasons one is they certainly knew mr brown was african american when they placed him in the position initially it doesn't make sense that they would come back there after and say well now we're going to discriminate against you by removing you know for retaliation purposes you have to kind of say does this really make sense that this would be a retaliatory  move st of all it isn't that wise is a jury question partner isn't that why this should be a jury question well i think there's a couple reasons why it shouldn't be i think factually it doesn't add up if you have the same actor  inference the same actor put him in the same actor took him out now did she know about any protected activity that preceded that we don't really know we do know that she had some knowledge of it and she's testified about that in her deposition but either way it doesn't matter if she knew about a complaint that he made before the july two thousand and thirteen a t t position then she is the same actor who put him in and then took and then decided to split the position was he the sole decision maker in terms of selecting him for this particular position she i think she was a decisive decision maker she was she collaborated and discussed it with another person tom jones i believe but i think she was the moving force behind the decision and she certainly was the one who decided to split the position it's just defies common sense that she would say i want to we're going to retaliate against you but st we're going to put you in the job and then i'm going to go on vacation and come back and then i then we're going to retaliate against him but don't we know that there's a difference between a person giving an acting position and giving more program absolutely i think that's the nd prong of this factually i don't think it makes a whole lot of sense and i could discuss that more but from a legal standpoint i don't think what we have here is adversity for purposes of either discrimination or retaliation i know that the standards are somewhat different but for discrimination purposes the  the protected act has to adverse action has to follow has to be you know a substantial tangible thing like a law in benefits or a loss in job reduction and wage for discrimination purposes certainly this is a temporary position they both served in the position for approximately equal times it was only one month long both of them testified that they did basically the same routine clerical administrative pole punching binder of creating jobs that really didn't add any benefit to them at all and that's from clogged from mr graham case testimony as well so we have a very brief position we do have a law that says adversity doesn't necessarily follow from the appointment or not non appointment to a temporary detail employer employers have to have the flexibility to move people around and try people out in different slots there is no tangible objective evidence that mr brown suffered any adverse effects from this he didn't lose any money it's not that he lost a specific benefit or an opportunity to move on to a different position he has alleged that sounds again like the arguments for the jury this was a temporary position that was designed to be  development opportunity for employees that gain skills that they can better positions themselves for advancement and so per his testimony and the other avenues couldn't a reasonable jury draw the opposite inference from what you're arguing that that is despite the fact that this was a development opportunity he never got that opportunity well i he did he get the he did get the opportunity though he had the same the exact same opportunity as mr gunky they were both placed in the position but then was assigned clerical duties never got a permanent e mailed and the position was split right out from under him these are all inferences that could also reason be drawn from the evidence that well i suppose you could if you if you take the position itself and say that this is a you know this would be an adverse action itself the failure to appoint or to move somebody in and out of a detail is to his assuming that that is adverse as a matter of law you know you could you could go there however if we want to look at the record here it's very clear that mr gunky certainly a pain no material benefit from this and neither did mr brown they both equally in it we're talking about a two week period now in terms of whether he going to benefit or not i may have to have a jury try to decide whether to add an additional two weeks in a temporary detail filling you know boxes and  binders is going to be a significant reason to find this was an adverse action and the fact that both of them in fact got to serve in the position they were rotated in and now we're talking about a two week period that he that he sidestepped from isn't sufficiently adverse either for discrimination or retaliation purposes to really go to a jury i think it's not i know he made more in his other job he made less in this acting position and the temporary details the law is the fact that they are not adverse in fact there is a case out of florida that we cite and that is i think cited in the order that says the exact same thing these cases these situations the temporary details the appointment or the non appointment to them are not considered sufficiently adverse for discrimination retaliation could you please take a few minutes to point to this goes to the court obviously under our arguments two we submitted a statement of supplemental authorities about three weeks ago indicating that under section one thousand nine hundred and one a party must plead a pattern or practice to have liability against and this a policy that was never done in this case  opportunity so so for discrimination purposes again you just have the standard test and i don't think that he is satisfied made a case of discrimination and or either of them for this position for one you have the same actor inference under under the so that's that's that's the st part so under the idea i don't think that he has a discrimination claim as to any promotion and during in that one he was th in the testing and they selected fourteen to move forward to the interview process and so for that one that was a legitimate nondiscriminatory reason and none retaliatory reason for not advancing his application they had an objective test objective standards and he did not score high enough also under section one thousand nine hundred and one for that position we do have the replacement element which applies in the th circuit under domingo's curry and that requires that the person appointed to the position that he didn't get was of a non protected category outside his class that element is not met either an african  you had a new person who was in h r her name was yvette martinez morales she was not part of the two thousand and twelve application process she developed a new aspect of this questionnaire it's called supplemental questionnaire and it required you to list in sufficient detail all of the positions that you had in a certain number of years and describe what you were doing in each of each and every one of them that requirement had not been present in the two thousand and twelve process and if you look at mr brown's application for the two thousand and fourteen process it shows that he simply cut and pasted something from a two thousand and eleven application and put it in there so he didn't read the instructions and he didn't read what it was that was a new requirement and she was very clear about it and she just qualified a number of individuals for the same reason and she disqualified caucasian employees for the same reason and that's also in the briefing in her declaration nightingale had anything to do with him being put in the acting position are evidence the inference that jury could easily draw is that she was not aware that he was put in the disposition that she was on vacation and when she came back from vacation and realized that he was in this position she started giving him menial tasks and eventually took him out of the business in two days later so i don't think the same actor inference applies and washington law has been moving more and more liberally toward allowing discrimination cases to be decided by juries in fact the the argument that we have to show that a person was replaced by someone outside their protected class has been eliminated by mickelson in washington the fact that we have to show or previously we had to show that for retaliation cases that the person actually knew about the protected activity now based on cornwell vs microsoft it's whether they knew or should have known about the activity so washington courts have repeatedly be moving more and more liberally toward allowing these cases to go to the jury in addition the whole history of mr brown's relationship with king county has to be taken into consideration even if parts of that are time barred by the statue  limitations because it shows how often he attempted to apply the fact that everybody was well aware that he wanted this job everybody was well aware of his qualifications everybody was well aware that when ralph st started he was the one who trained supervisors that have now moved past him all of that is relevant for the court to take into consideration in determining whether or not a jury could find discrimination in addition to that the anecdotal evidence that we we showed again it's not th circuit case as one a district court case that a d c and one was an th circuit case but those cases are not talking about moving from one job to another job the acting technical training position it is a build up to the if so you can say that for a month or two months i acted as the technical training it gives you a leg up and lastly it is definitely not clear it is not an established fact that this position was only going to be a two week position or this position was only going to be a thirty day position it's clear from the record that the position was going to be a long term position and for some reason nightingale decided to cut the position short i think of mr brown and not complain that being taken out of the position was an act of discrimination mr guppy would have stayed in the position for appreciable amount of time they did not advertise this position they did not go through a selection process for the position they did not do all those things to create a position that was only going to last a couple of weeks so i know the court's going to defer for the supreme court ruling but i still ask that this be reversed thank you counsel i want to think both counsel for the excellent advocacy on this case brown v king county shelby submitted now and as the council may have inferred the court will soon well an order that