the court rebecca copeland on behalf of dr melman chain i'd like to respectfully read reserve two minutes for rebuttal i think the court's decision in this case comes down to whether or not the district court properly applied the standards governing summary judgment the specific context of a retaliatory terminations case it didn't do so in this case because it resolved disputed fact issues in favor of stronger rather than in favor of doctor chaining it failed to draw all reasonable inferences in favor of dr changing and it failed attempt to give meaningful application to this court's precedent that very little evidence is necessary on summary judgment in order to withstand judgment as a matter of law this case isn't about whether or not dr change has definitively proven his case for title seven violation against straw it's about whether or not it should not have been prematurely dismissed and instead should be decided on a full record upon of searching inquiry by the trier of fact the district court went through the appropriate mcdonnell douglas framework turning to the first element of that framework dr chang needed to show it at least minimal evidence or very little evidence no evidence from what you reasonable jury could find in his favor it's not you know something if you got barely more than nothing you get to go to trial that's not the standard well the standard is minimal evidence that a reasonable your correct manner is whether a reasonable jury could if if believed if this person's evidence was believed would be able to rule in his favor and so let's just start when i mean you there are multiple grounds on which the district court found your client so why don't you start with the first one just whether you can even engage in any protect to protect the evidence that he opposed discriminatory practice that there was that minimal evidence president for example is that he did say every time you say that i'm going to resist  all i was going to ask is maybe you're saying that there was evidence from which a reasonable jury could find that he protested the terminations on this basis so let's just take a look at what you're talking about because i was inclined to think that this report was right th just wasn't enough there but i'd like to have you point me to what what i should be looking at so the evidence in the record for example for starters comes from dr chain's declaration on pages one sixty nine there is regard to topple in ski or not based on his age and wage concerns ok where i'm looking at it but were you watch her i'm sorry i don't have the actual record excerpt with me i just i have reference to the 'm looking at this page that you referred us to and there is a paragraph that says in two thousand and six i was informed is that what you're talking of yes ok part of what over time i mean it doesn't say anything about his having protested her terminations on a protected ground at least not that i'm saying it doesn't say those exact words and i think that's part of the point is that magic words aren't required in these types of situations he does mention that she was well qualified to her two to her long term experience and and then he also confirmed in his deposition testimony later on that his actions were  specifically made in order to oppose tribes discrimination of older men minority women you mean you are cited for the death of those various record sites are three forty seven four zero two to four zero three four zero six to zero seven four thirty one and four thirty five ok he also referenced in the welcome home suzy document which in total is a record it's also referenced in paragraph thirty seven on page two twenty five right and i would just respectfully i would say in this court back to the precedent that it is a minimal amount of evidence and if there's something in the record and if on causation again one of the problems obviously with the just her court order is that it ruled that because he hates didn't know that there was no causation but the law is not that the only the person terminating the individual needs to know but just that a correct and one was determined it was terminated in two thousand and one in march that's right so that's a big much longer gap than our cases ordinarily so use ok for the because of connections so what do you have to resist summary judgment on so what we would point the court to is that although there was an extended period of time that four months prior to that terminations the e mail correspondence went between dr cheney and revera in which the issue of the discriminatory actions that dr cheney has a had attempted to oppose back in two thousand and seven was susi matta g that came back up only four months before he was terminated it has to be it has to that late that that ties yates into your claim yes as a matter of fact that e mail in november two thousand and ten was forwarded to yates so he was aware of that situation at least four months prior to the terminations during the terminations hearing itself although the references weren't explicit it did come up related to the susan matter g matter at that point too but i think really the more important factor is the e mail in two thousand and ten so when y s provides a declaration that says he has no idea i mean the record is actually contrary to that statement and again to the extent you say it is you see in november to in november two thousand and ten he there was an e mail forwarded to him national record where that's on record page two forty nine and where else do you have a tie and d h in reference to the communication that was provided as part of the summary judgment proceeding  the transcript of the proceeding i guess of the conference that they had that dr chain submitted to the district court and where is that in record it's let me see i believe it's on page two fifty seven that's the reference specifically as part of the meeting that the two of them had when dr chain was terminated and then dr chang also mentions it in his declaration as well as well which is page one seventy eight eighty's that shows that he was aware of the actions that were occurring with dr chains advocacy on behalf of those individuals four months prior to his terminations so it brings the temp down damn find out that yates was aware of this were in the record shows who were the well i think it shows based on the fact that he was that those that that e mail was forwarded to him and if you have to make an inference one way or the other on that that inference has to go in favor of dr cheney under the standards for these types of cases well as i understood the breeze of your of your adversary there was no tie and he had so that's why i was asking the question and i understand that they made that argument as well your honor and my point is that there is at least some evidence showing the tie in because in particular of that e mail that was for to him and if you're going to have that kind of just if you did factor that kind of inference then the case all requires essentially to it was the telephone conversation that he had in march of two thousand and eleven and then his what they called an atypical work environment the burden then shifted back to dr chain to show that there was a pretext for those legitimate reasons in this context this court has stated that any indication may surf ice to raise a fact issue and dr cheney is also permitted in that context to rely on the same evidence that he relied on  many other higher ups including yates were aware that those actions and that that advocacy had occurred prior to this germination and that because of that effectively the any inference could just as easily be drawn  gap i mean normally if an employer wants to retaliate against an employee for having a gauge and protect act protected activity they do it relatively close in time right at the normal scenario here we have a three plus year gap if which your client was a allowed to continue working no no problems whatsoever then late in the day twenty about these things occur your burn is to show just to convince the jury that the reasons given by the employer and twenty who have been were not the real reasons and  i don't know what is there to us to draw that inference they sat around for three years and just let's just wait for him to make this call and say something inappropriate to this other employer does you know bad mouth our c e o and as soon as he did then we jumped all over him that's when we fired him and then we're going to make up these reasons that just seems like a real stretch to convince a jury of that and i and i understand the court's concerns and i would agree that the evidence isn't perfect we have the  though that occurred prior to the march two thousand and eleven telephone call and i think that when the end when you're drawing that inference at least for summary judgment again although i understand that the standard applies also to what you're going to eventually have to convince the jury of that's all a full record and that's not necessarily what we have here the summary judgment proceeding was filed only eight months after the case was filed and if we had a full record maybe we would and when you have those disputed fact when you get to judgment you can't complain about the record not being full if you don't have enough time to conduct i get adequate discovery rule fifty six provides a mechanism for you to get additional discovery you parent we did the bill yourself of that so you're stuck with the record you've got now you can't hypothesize about what if you got to trial what additional evidence you might come up with that kind of filed a motion for summary judgment is make or break time you've got to come forward with everything you've got at that point this is a pretty pretty thin record i think as you've acknowledged you know unless my colleagues have further productive activity causation pretext on the causation issue knowledge the appellant statement of the law is quite frankly incorrect under the ninth circuit case law it has to be the decision maker who makes who has knowledge of the protected activity and that's borne out in cases that we've cited both rad our a d d and read or edi and is even borne out in cases cited and relied upon by the appellate so they reply they rely upon cohen versus fred meyer to say that oh if any supervisor knows of the protected activity that's sufficient but in that case the court explained that thus at the time that reynolds made the decision that the rectory resulted in the adverse action against the plaintiff that he did not know that she had engaged in protected activity and a scheme sort of in the middle or a little after the middle of all this activity wasn't even around one hundred two places to the advocacy that dr chang relies upon that's correct so became the chief medical officer just a few months before in two thousand and ten he was not around two thousand and six he was not around in two thousand and seven and so specifically to get to the issue of what yates knew the record is didn't read well except that he says he didn't read anything about the claims of everyone involved for us yes your honor you decided based on what's in the record so you have yates unequivocally saying that he never saw this specific reference in this forty one page document which dr chang has described himself as he told him and then you have dr chang himself admitting in his deposition that that even gates probably would have missed it and then on top of that you have a situation where dr chang went searching through that forty one page document and this is in the superseding and and he was searching his deposition the e e o c asked dr chang what is your protected activity they gave him the definition of it and directed him to the e e o c manual he then testified that he thoroughly went through that manual spending hours to days reviewing things like welcome home suzy this forty one page document and he admits in his deposition that as he scoured that document even he missed the reference to quote unquote protected activity that they're relying on today on that record it is totally undisputed that yates had no knowledge of this this one referencing welcome home su brief which also stands for the same proposition and also even the cases cited by plaintive excuse me appellant stand for the proposition that they have to present specific and substantial evidence of well in their brief they cited none the only thing they've said is you need to look at a portion of the prima fascia case but the ninth circuit has said before that that's insufficient and minimally sufficient prima fascia case doesn't establish pretax and that's also in the goal and wallace instead what they have to show and as you pointed out is how are straws reasons either false or are they retaliate tory but it's totally unreported in the record right if you go to yates's declaration where he explains his his thought process he says that dr chang had a deep seated animosity for the organization and its c e o that's a direct quote from his declaration and that's borne out by the record in the comments to linda can ciena the doctor chang expresses animosity toward the c e o he says you should take his big fat paycheck his words not mine and and he's also says that if if the c e o want to shake my hand then he owes me an apology first on top of that gates did also look at this november two thousand and ten e mail but there is no protected activity in the e mail the only thing that e mail shows is deep seated animosity right so shakes his hand and dr chang after three years of nothing sends this e mail and this is what he says to the c e o of the organization that there are very there are only a few people i have ever interacted with who i would prefer not to see at a social function and you happen to be one of them he then goes on to say i tolerated your greeting and then says let me clue you in on something and then in all caps this i chose to stop talking to you he also calls the o an eight hundred pound gorilla and refers to a speech that the c e o gave and says that he almost vomited and that it was a brainwashing seminar and why did you pay for that  demonstrably deep seated animosity for the c e o which yates was or was fully competent to take into account and terminate his employment the last piece of why he was terminated was this employment arrangement and that also is undisputed in the record and so what yates found after this issue came up to him was oh my god this person is an employee because  set forth in his declaration states he didn't realize that dr cheney was an employee and then looked at the situation and found while this person works one day a month there's record evidence that there is no other doctor in the entire organization who had that deal or that situation and so gates took that into account as well i know the court did not address the claim so i'm it please the court on the decision maker issue we did cite case out that states that it has to be a supervisor or at least one supervisor of the employee who is terminated and if strawbs argument is taken to its logical conclusion what that would actually mean is that any time an employer wanted to fire somebody for an improper reason they could just bring on somebody new and then you have a decision maker who is unaware of it who can then terminate them and they're covered for any titles have been claim i don't think that's what title seven is meant to protect and i don't think that that's what this court's case law says and particularly we cited the mcdaniels case which uses the words at least one supervisor and here you have a number of the higher ups  and his supervisor in addition to just yates who knew what had been going on and was aware of that prior to his term a nation if we use is one that makes the decision how's it relevant if he doesn't know what other supervisors know because there was there's s a point that he did know but if he didn't know it's irrelevant that he came in in the determine the rest you are indicating that there was something wrong with the case because he wasn't there all the time i don't see that it's what he knew when he when he released dr jenkins not true correct and i think our position is that he did know it least enough to survive summary judgment in this case and to all those disputed facts in favor of dr cheney i understand i just thought i misunderstood i understand and also with regard to the pretext issue in addition to a direct evidence obviously a plaintive can also rely on indirect evidence on the inconsistency s and contradictions and that's really what we're talking about mostly here is that the evidence that was presented when you look at it as a whole it was inconsistent at least enough again to survive summary judgment and in fact what the district court actually stated in its order was that dr chain was largely terminated for these reasons i think the fact that it used that word is important because that shows that it resolved those