good morning your honour's council made please accord i'm william mcneil i represent the appellant arnold chu in this matter are here because of two statutory situations that deal with employment discrimination as we all know if one wants to take advantage of either he california fair employment and housing act or title seven one must file an administrative complaint and the first reason why we are here is that the district court determined that mr chu had failed to administratively exhaust his complaint and it's our position that that that's absolutely correct the important consideration is that all of these administrative complaints under the longstanding jurisprudence stablished that by the supreme court and love the moment and reiterated that in the fist circuit with sanchez versus standards brands and adopted by this court and over john the idea being that because lay persons required to file these charges that they are to be looked at with the utmost of liberality if you will indeed i would posit for this court that mr choose the things that he went through to try to file his charge his charge a den of five the basis of discrimination that he has are you referring to his first charge of the second superseding one but both charges your honor certainly the first charge it it goes into i would say excruciating detail about what mr q had been subjected that's the second charge did that not supersede the first one wasn't the first withdrawn well he did sign a withdrawal but if one reads the withdraw i think he did it with the understanding that it was supplementing his first charge because of the language does not say i just withdraw this something is wrong with this charge at all it says something to the effect that i would i will supplement discharge with further details you have the records cited for the document in which he does the withdrawal if the court would just bear with me while i find my glasses sure sure if you look at eighty our ninety six recites languages will refile complaint after meeting all prior categories and i believe that's conditions what that indicates to me is that he is going to refile it as a supplement to his first challenge but it doesn't say something that says will refile in repeated again i don't  said that it should be considered as a supplement taishan because one does not know why the request was met it was sent to him if you check his declaration it was sent to him it was not clear why it was sent to him it was not clear what else he had to do that said i'm sorry and i interrupted you go ahead and if you can if one looks back at the steps he had to say this is an instance where a lay person has gone through as my mother would say pillar to post to try to file this with a new system regarding having to so having to submit stuff by computer mr chu had relied on chef collins to go down and you would talk to the people the other thing i would like to point out to the court with regard to his first charge was accepted otherwise there would be no reason for them to ask for him to withdraw it what with respect to the record to which you're referring will refile complaint after meeting all prior categories and conditions above that a box is checked asking that the investigation be can discontinued is that concern i didn't understand about that is a box that's checked which says discontinue investigation for other reasons that's a brick is that not a request by the appellant to discontinue the investigation i  think it's an instance where someone who does not understand the form and was told to check that and to to make comments it i think again this goes back to the problem that one faces with being a lay person with regard to having to establish for some agency what discrimination you are is to say what discrimination has he shown on the evidence that he's presented well you certainly showed that he was retaliated against he certainly showed that there was this association of discrimination indeed the court found association of discrimination and what do you mean by association of discrimination one of his problems was that mr condit clot did not like the fact that mr chu assisted a black chef in trying to remediate his so called limitations as the evidence show that he didn't like he was doing it because he was black or he didn't like he was doing it because he should have been doing his own work i think the evidence establishes that there was racial animus there in which the evidence of racial animus i mean i understand that he's instructed to quit helping mr collins with that computer stuff we're going to have trouble doing your own job you go do your own job what is there that tells me that there say you know this is another indication that you know you aren't doing anything you haven't been trying for and i ask you did you follow up with any training at all did you do anything in order to discipline it was his response essentially was you know i just let him dangle in the wind to me that is an instan the entire world i apologize i got a little involved wasn't he places once the placed on a development plan in october two thousand and twelve as part as a alleged ever to have him improve the system in improving his performance allegedly he was put on a performance plan but i would like to point out to the court mr chu and each of his evaluations got competent and all of his evaluations and this all essential he started after his confrontation with mr condit klatt about his assistance for chief chef collins and two thousand and  even he started having all of these things happen to him and he complained about them which his declaration show i would posit to the court that this is  situation of micro aggression directed toward him which would be a ken to a hostile work environment he says and both of his charges talks about not having a nonracial environment so that the court the administrative body was put on notice the fact that he was making these charges what evidence do you submit is sufficient to show a tribal issue concerning pretext well enough to establish it particularly in employment discrimination cases that the reasons proffered may not be the real reason and again if the if if one looks at this court loam situation says because intent is a very important component of any employment discrimination action then the court should be somewhat hesitant to essentially rush in to the fact that what they're there normally is not a smoking gun with regard to this and if one looks over mr shews declaration about the things that happened to him if one also reads sheff collins's declaration it shows that there were a series again i would call the micro aggressions but certainly aspects of behavior that indicated the powers that be were out to get him and he talks in his declaration about being told exactly that that that that was going to happen i was hoping to resign reserve some time but let me just also respond one little bit i would notice that the court found that he had established case with regard to associational discrimination and i think that we also established that there were there was just cause for a claim of retaliation ok why don't we hear from the other side and then you will have some time morning your honour's may please the court any supervisor the city and county of san francisco i just wanted to point out that the crucial issue in the case in this case which i believe your honour's have correctly focusing on up until this point is that the merits of this case show that there is no racial animus at all and there is no evidence of retaliatory animus therefore the plaintiff has failed to establish the final product prongs of the mcdonnell douglas framework with regard to association discrimination and retaliation that is the bottom line of the cases with regard to mr macneill's argument related to administrative exhaustion i think the main distinction between the case law that he cites and the case that we have here today is that he speaks about literally construing the d m ph complains because they are to be filled out by lay persons of the court and it's true that mr chu when he initially filed his claims was a lay person however by two thousand and thirteen he had an attorney i'm sorry february twentieth with the may seventh two thousand and thirteen letter than why was it that sufficient to satisfy the requirements in that excerpt a record of starting a page of one sixty nine why was that sufficient to make clear what the charge was well i think that there is contradictory case law on that point but i still think that if you look at the cases cited by mr mcneil there is evidence of allowing in supplemental documents in addition to the complaint but again these are lay persons and so the court has been giving liberal interpretation to their efforts in that case he may sevent thousand and thirteen letter was in the regular riginal record before the district court correct it was always was was it a basis upon which the appellant belied her and the district court proceedings you know the appellant did not make any arguments legally in the record below that that letter should be the basis for allowing the administrative exhaustion requirement to go forward she did it was attached to a declaration but there was no legal argument and there was avoid mcdonnell douglas well he hasn't shown any evidence of pretext for any of the conduct that mr chu has alleged so for example there are two suspensions on the record there's no evidence of pretext he has not fulfilled his burden on either of those there is a performance plan and there is a suspension for not adhering to the requirements of that performance plan and there are two written warnings i have seen no evidence of pretext for any of th can evidence that sufficient to establish the prima facie case under mcdonnell douglas also be evidence a pretext well under the case law i don't believe that that is the way that it  city are then required to present our legitimate business reasons and then he must come back and present evidence of pre check so i understand that part but my question really focuses on if there were shown and determining whether there was at least a tribal issue one pretext i understand your question on our argument along has been that in fact he hasn't shown any compelling reasons so for example with regard to the issue of whether or not there was discriminatory animists to satisfy the final pronk of the mcdonnell douglas frame with work with regard to association discrimination as your honour's pointed out in your questions previously there is no evidence of discriminatory animus towards mr chu based on his association with mr collins because of his race so are assertion is just because you know there may be many cases  employment law cases where there is personal animus there may be a difficult relationship there may be a series of complicated different cold relationships but personal animus or professional animus does not rise to the level required under but i think your answer to judge conscience question was yes at least in theory perhaps my answer is but here on these factional corks ye question another question there is this the the opponent was employed from ninety ninety eight forward until now correct so the still employed that is correct and there were certain employment issues between the year two thousand and two thousand and twelve that have been identified correct but the and the contacts with mr collins started in two thousand and eleven is that right or the issues raised concerning those contacts were first raised in two thousand and eleven there was one issue that was raised in two thousand crash and some discipline followed in the form of the development plan and then determining in two thousand and twelve and two thousand and thirteen not enough progress under that plan you with me so far yes is that evidence a pretext that for several years there have been issues on performance but little action taken and then within a shorter time after the interaction with mr collins there were actions taken  i would say that there are facts additional facts that are relevant so he was given a written warning in two thousand and nine which was before mr collins started working at laguna honda hospital he started in two thousand  the infection warning exactly he was given another written warning in may of two thousand and ten the email from his that's the end attention to duty warning exactly the email regarding  mr choose instruction to stop helping mr collins with his emails came in two thousand and eleven he was put on a performance plan a year later by a different supervisor so i think already we have a year passage of time and then he was disciplined for failing to adhere to that performance plan a year after that so you know i don't see any evidence of pretext here i think enough time has passed and between each of these events the other thing i might add is that again mr khan of klatt as you stated earlier instructed mr chu not to help mr  collins with his emails because of mr choose own performance issues which have been well documented up until that point there's no evidence of any racial animus mr collins and mr chu both concede that no one ever made any comment about their association or either of their races and any time was the assistance being provided during mr jews breast and meal breaks there that is not in the record  i would also add that mr chu mr collins also testified in his deposition that other people helped him with his e mails and his computer because it was known that he did not have computer skills none of them received any adverse actions any criticism anything at all that he knew about and other people also testified in their own depositions that they helped mr collins with their e mails and were not disciplined for it the final thing that we might add is that with regard to retaliate there really is no protected conduct here that mr of regard to any of the adverse actions that have been taken against him i think that he is attempting to say that his helping mr collins with his emails and his computer skills was protected in some way because is african american and that's simply not with the case law says the case law says that you must be protesting something which is prohibited by the statutes under title seven and fee ha so you have to be complaining just criminal based on a protected category harassment describe based on a protected category or retaliation based on a protected category he complained of not being allowed to help a colleague quite simply and no point he mention mr carranza race or did anyone mention mr collins as race so this is simply an internal workplace disagreement and i would add that he continued he stated in his e mail he would continue to help mr collins with now it would be actions that would cause people pause to do things and indeed mr choose declaration indicates that mr collins is decoration indicates that indeed the treatment of mr chu is one of the reasons why he retired early not the sole reason i grant you that but certainly one of the reasons again as as kronstadt i hope it's close to the pronunciation oh you don't find it indicated he goes along quite well for a number of years and then after two thousand and one suddenly these things start undercut the pretext and i the the idea being again not to establish absolute proof but to present this to a fact finder namely jury as to whether that would be part of what was motivating the people in treating mr chu the way he was and again mr hughes declaration chef collins declaration to indicate that there are a number of things that happened to him during that period of your overtime so if you'd like to sum up i would just like to sum up your honour's saying that there is enough evidence to warrant