this is indeed a pleasure that we are appearing before you today because this is in fact our first court hearing in this matter this was a motion for summary judgment that was brought on behalf of the defendants and was granted by the federal district court we are well aware that you're probably  have reviewed the extensive briefing in this case so i would just like to bring to your attention during this oral argument just three main points that are very important to the plaintiff in this case those three main points are the significance of  comment that led to a memo memorandum of corrective action right before he was rejected on probation in fact a very irregular probation that is a second point that i would like to discuss with you as being very important to the appellant and that is the basic unfairness of the probationary period in which he served it was in direct violation of all of the civil service rules that apply to probation in this instance and that unfairness we believe is an indication of racial discrimination that was present in this case the last point which is probably the most important is the circumstance in which these facts arise in that is the bureaucratic culture that has been created in the audit and evaluation division of i would make it is a minimal standard even below the preponderance of evidence in this case we brought three causes of action first was racial discrimination based on both national origin and race the second was retaliation for reporting racial class the prongs that judge rel found that were not satisfied in the six circumstances are first that he was not performing at a level that would ordinarily entitle him to position in which he was up on probation for and third that he was not treated differently than a similarly situated coworker for the first element of that prima fashion case which was that he was not performing at the level that it would entitle him to that probation position that he's a poor performing employee however we all chris prove that by the defendant's own conduct that if he was such a poorly performing employee why was he never disciplined demoted put on probation he was only just allowed to do his work and there is never any comments about in that proof offered by the defendant that his work the substance and level of his work with that standard he didn't go to training classes what he was told is that he was not accepting constructive criticism and that goes on year after year after year so least at the very minimal level appears that we should be able to put the proof on particularly since there are so many to clarence in this case of the many years over ten years in fact multiple layers of supervisors who claim that he's a poorly performing employee but we never really get into the substance or level of how they came to that conclusion other than almost exactly verbatim statements in which they are just repeating what the priors supervisor said was right he took an exam and he was promoted to the next level yes and that is i think leads us to our second point which is very important to us even if we put away all that ten years and we do not even consider that because he was promoted and he was promoted by the acting group of supervisors that were rubber stamping what a poorly performing employee was if we start from the very basic of his probationary period which is august first two thousand he was promoted that then takes us to the second level of whether he was treated as similarly situated coworkers which is the third prong of that profession case the probationary period in this case is very extraordinary under still service rules for the state of california probation or to get three probation reports the purpose of those reports are to give the probation or notice as to whether he's performing to successfully complete similarly situated coworker was not met in this case we argue very strenuously that not only was the probation unfair because christopher oak was never given an opportunity to get those probation reports to improve not be proof that no discrimination happened at all in fact that leads us to our third point in that probably the most important here is that russell long worked in the same department is christopher oke was or both of them are protected status and they are both of them worked there for a long time under the same regime of management the bureaucratic culture that was created by the same supervisor simply rotating through recycling doing the same job litigation this lawsuit was brought and it was groundless when it was brought it was doggedly pursued by stroke wilson whose counsel after a long discovery process continued to reveal there was not any evidence to support any one of the thirty nine causes of action that were left not because of us from the thirty nine when a dog went when counsel pursues a dog and claim i'm sorry when counsel doggedly pursues even a colorable claim after the evidence shows after the discovery shows there is no evidence and the claim is bound to fail perhaps careful enough with what i said there was no other record what i meant to say your honor was that there is no evidence that record that that didn't happen other people on probation in fact what mr fischer has testified to is that he did it that same thing with mr o brother that when he when he was first a murder mystery mr promoted another african american born in nigeria plains brother and went to him after the promotional decision was made and explained that he had a chance to show his opportunities he had an opportunity now to show that he was in fact it was his father but the parents was dying he had to take a lot of time off and wasn't available so he only had percipient knowledge about the first three probationary period and it's undisputed that the way the civil service system works in california is that the first of the three probation periods essential really doesn't test the the full capabilities needed to be demonstrated for the promotion and in fact if you if mr perry in his first probation report which is the one he prepared where every category but one is well the satisfactory says well it says in fact and that's the problem it's impossible not to meet everyone's a member of a protected class i'm a member of protected class everyone is an on twenty nine of those cause of action clothing that eleven year period leave of the discrimination and harassment claims leading up to the promotion the court specifically found that was the only prong that there was admissible in that there was any evidence of so it's not simply the case that he only almost made his prime a face case in fact one of the reasons discrimination claims and that's the promotion component because this rockwell's had planned a thirteen year period here through the period of litigation of this rumination the court for analytical clarity goes up and it's in its summary it points to the fact that you need three of the four and so that shows the claim isn't without merit now there's simply no law that supports the statement that if you only make a prime of facie case out  heard this it was everyone knew it and they couldn't name an individual now one thinks about an african american employee who was thirteen years at least he was discriminated undisputed fact number two about a minute and a half left the question was not why i think it's that command line here it's not the question was have you ever heard ed murray say no black man would ever be promoted well i'm in charge and the answer was they didn't hear the words but in fact that's what happened so when we argued in the allegation that that's what we were going for it's because that's what happened and emanuel cause it gives his declaration saying that he was going to try to black men have to go outside of the department in order to be promoted and that is a very crucial distinction for emanuel and then in closing i think it's very important to note that cr was held to an impossible standard he was criticized for using the telephone and yet that was part of his job that was the tool of his work and so after if today he loses this appeal then the people that are watching this case and there are many will not know how are you supposed to act at work can you use the phone or can you not use a phone are you subject to your supervisor just criticizing you for by counting up your phone calls to call that the excess of use of the phone for personal use without even knowing what those phone calls were the purpose of mr oak was appeal today is simply to ask for a level playing field to have those rules apply to him as even me as it should be apply to everyone else so that he knows how to do