waterhouse coopers report or the p w c report was a pretext for a retaliatory and discriminatory terminations on this point the district court stands in direct opposition to the state trial court as this court has ripped stated time and again circumstantial evidence and direct and both must be viewed in the same light in other words it's not always true that dramatic evidence of discrimination is more powerful than best evidence that maguire was motivated by retaliatory animists comes with respect to the timing of the investigation the timing of the investigation the investigation occurred directly after document toy or stated in a meeting at which mcguire was present that she intended to present to the national plenary panel evidence that the guilt had been inflating its minorit been classifying low skilled and low wage african american employees as officers and managers and they did this to make it appear as if the guild were actually employing high level african american employees when in fact the department heads at the time that that was hired had were entirely and there wasn't a single person of color in a high level position other than dr mc persuasive and this court has repeatedly held that the timing of an investigation the timing of the terminations if if plaintiff can show that in an investigation or terminations any kind of adverse employment action took place directly after making a complaint of race discrimination threatening to take and unethical an unlawful issue to blow it wide open this court has held that that is good evidence good circumstantial evidence that the pelleas them in the court below as to how this investigation got started and we believe that's further evidence of pretext year i can tell you what the two completing reasons were i personally don't know what the actual reason was and i don't think the district court could have known either in fact the state trial court when it found that there was sufficient evidence pretext relied on the conflicting reasons provided by defendants in their evidence that there was  deposition she was confronted with the initial report and asked was this what initially concerns you know about the grant and she replied under oath i have no idea what she is talking about never interviewed me i've never seen that report before i didn't even know that investigation was going on until after the fact she said in her deposition and that she became concerned when another employee evidence he smelled a rat he said i don't know what's going on here but i know that it's not appropriate for me to resolve this on summary judgment this is evidence for the evidence in his mind in the state trial courts mind of pretext and this around the bomb at the end of the day there was no finding of retaliation your honor i think it's important to understand the procedural history because it is confusing and to understand why the state  court looked at the evidence on a summary judgment motion and found that there was sufficient evidence the pretext discrimination claims were then taken away from the state court those are the claims that went up to federal court the so back to judge to to the state court was the defamation claim the defamation claim was based on statements that appeared in a newspaper called the hollywood reporter california law has a special statute called instead for all of these reasons she doesn't have a probability of success on the merits and in the trial court one of the reasons they gave was that there was no evidence that defendants had made the defamatory statements the statements  ared in a newspaper but much more couldn't show a causal nexus between defendants making the statements and the statements appearing in the hollywood reporter in other words there was no publication publication is an element  treated the same way as she was the question was not before the court in the anti slot motion that question is before the court now so let me give you an example there have been a number of federal appellate court cases that santy in delhi stance the plaintiff was an insurance claims adjuster and she made several complaints of discrimination age discrimination and sex discrimination to her supervisors shortly after she complained an investigation was started into her gas mileage reports and as to whether she had basically stolen money from the company by inflating her her gas report and the investigation turned up very good evidence that she had in fact fabricated handwriting receipts and that she had engaged in wrongdoing the employer came back and said look we have a policy of investigating all of our employees we didn't single this person out simply because she had made these complaints we have a consistent policy of reviewing all gassed reimbursement reports and she was treated just the same as everybody else the employee then came back and said that's not correct we have evidence that there were two hundred similarly situated employees who had suspicious evidence that they had been stealing money from the company in this manner and none of those people were investigated  the court said that because the plaintiff had come forth with sufficient evidence showing that other employees outside of the protected class who have not complained about discrimination she she has shown that they were not treated similarly those people were not similarly investigated and the only difference between plaintiff and those other employees was that she had engaged in protected conduct she had made complaints similarly here even assuming that some of guild were not investigated despite numerous complaints both by numbers board directors and much oir herself that they had engaged in suspicious activity with respect to their grant submitted a declaration in support of defendants motion for summary judgment below when those two individuals have been at their declarations below here's what they said the purpose of the investigation is to investigate all outstanding i a c at grant's they disclaimed the notion that the investigation was started just to look at dr mccoy or they wanted to make it seem as if the pugh w c investigation was this neutral investigation that had nothing to do with came back and gave a report to you let's pretend that you're the employer and the and the report says the purpose of this report is to present our findings as to an investigation on all outstanding grants which is what happened in this case there was an attempt to make it seem as if the investigation was all outstanding grants so let's assume that your hypothetical  had to make credibility findings here was he going to believe dow and hunt to claim that this was a neutral investigation into all outstanding i c f grants despite the text of the report which for example we submitted the declaration of james hunt we submitted the declaration of sophia banks these were two key components of the judgement he said he would have liked to have seen well the case was in federal district court and under crusoe which we cited to  for misappropriating over thirty thousand dollars in response to that appellant submitted a mound of evidence and basically said go find yourself the fax numbers one through one sixty one under an eighteen page document th pretext the statements that there were no discriminatory or retaliatory statements by mr mcguire and so there is no direct evidence of discrimination in addition to that argument my theories circumstantial evidence we don't believe there is circumstantial retaliation claims under title seven and section nine hundred ninety one was left alone and several courts have continued to apply that doctrine to say if the evidence shows the same decision would have been me even if there is disputed issue of fact as to i believe there's also one more side i would like to thank you but what can we can pack continue your point is that under the law nineteen eighty one and one hundred eighty three if there's mixed motives in the same decision we would have  now the other issue that palin has raised before you is the del santa case and i'd like to take a moment to distinguish that case and she said in that case there was evidence that the wrongdoing at issue of inflating gas reimbursement expenses that there were two hundred fifteen other people that seem to have engaged in similar misconduct and there was a memo that expressly said that from the employer and in that same memo it says that thirty one people have submitted reports on numerous occasions that had that plan or a problem now the memo also said we should counsel those people so they made certain admissions that it wasn't necessarily a terminal or fence contrast that that's a here where the screen actor's guild had an executive administrator who was a fiduciary over one hundred thousand dollars grant funds and she had falsified invoices and given monies to her friends business partners is an independent entity it's made up of those of the motion picture size of the business as well as members of the union side of the business and there has to be a majority between the two different sides while john mcguire did raise the concern that the person who has the prior conviction dismissed can under california law when asked have you ever been convicted of this crime answer no but that's a separate issue as to whether  after acquiring evidence defense might be necessary in this case what we have is a legal requirement that screen actors guild was not permitted to employ her and if a deal had known and frankly doesn't matter whether guild knew or did not know and doesn't matter whether it was a felony or we say you have the lp if you if you look at section five or four of the elem r t a it specifically says if you've been convicted of a stony or similar offense and she was convicted of a misdemeanor for medical health fraud which is similar to larceny and the nature of the conviction is defined by state law and once there's been a conviction then it's up there well question as to whether or not that conviction bars there but the nature of the conviction is determined by reference to that if i don't your honors i want to take you to a few places in the record that i believe deserve a second look as to the timing question mccoy or attended a meeting in the fall of two thousand in which she presented but in which she presented evidence  seven that meeting occurred in the fall of two thousand i looked at the site to the sophia thanks evidence i believe it was have fifty one she stated that she discovered suspicious employees invoice in either late november expose this wrongdoing and now are you saying are you that your allegation at this point i am not your honor i am all i believe that the question that was posed to defendant was when john mcguire may have had the first things then discovered this is invoice in november or december of two thousand the final sites that i'd like to provide are what i think are some of the best evidence of pretexts in this case if you look at the dow declaration about question justice three grants correct answer yes was there any reason why it was limited to just these three grants that you prefer to answer the reason was because of the concerns raised the civically that that's where the audit should be concentrated that deposition testimony is contained in our tab for pages three twenty seven three twenty eight this is very good evidence these gifting explanations as to why the investigation was started as to what the scope of the investigation was supposed to be raised deficient evidence a pretext this is what the state trial court concluded and the district court must have