ok i represent the plaintiff in appellant james wang in this matter this is a case where of course the coby using all the argument time i will reserve three to four minutes but the person sitting at the investigation received missed both mr wang side and so on side and found cause that mr wang had been discriminated against and also felt that sony had failed to accommodate going further of course that is also a violation of california law because the fee ha includes the a da in any violation of the a d a s also a violation of the despite this summary judgment was granted in appropriately as we  arguing primarily because the defendant came up with a post talk argument that mr wang wasn't qualified which is simply untrue well what evidence is there in the record that at the time t was filed sony knew or should have known that mr wang had the record requested three year experience practical work experience with java because when you just look at his resume you can't see that well there are multiple because in the application process they they screened mr wang as one of the qualified applicants for the job further in the application process after mr wang was told that he was not going to be interviewed and they failed to accommodate his request for a text based communication system like the a i am that sony not only interviewed simone but wanted to bring her in for a practical skills test a second level with simone wu despite the fact that she expressed lee had zero job experience not on her resume not on her educational resume and not work experience either and it was simone wu who actually cancelled any interview because she had a job already and she didn't want it to interfere with her job so there's multiple issues here with sony's argument one is that mr wang of course was qualified mr wang did were he was not qualified mr wang did not have anything in the background education job or generally and he said that  declaration that the court stated was addressed in the brief on this did novo i did mr wang stack liberation in your opening brief you did not assert a challenge to the district court's order excluding the declaration so that's waiver your honor i disagree on multiple grounds one we did specifically address that the declaration couldn't have been a sham and that it should have been considered by the district  within our brief second only because this is a look at the record at the time the summary judgment was filed that was in your reply brief that you took that issue up try to raise that it was also in the opening brief page fifteen through eighteen talking about the qualification and al i can see how the court would argue would say that it wasn't raised as a specific point in the brief but i don't agree that it was a waiver and i don't agree also given the standard of review that it's to no vote all the evidence presented before the court that the court couldn't consider that anyway be that as it may even if the court were to completely not consider the declaration even if the court would say the declaration the issue with the declaration wasn't brought up in the opening brief even if all those things were true it's simply that the argument their argument simply has to fail because one is the fact that mr wang was put in a pool of qualified candidates at the beginning at the time the lawsuit was filed and at at the time of the hiring process the second he was given an opportunity to come out and interview by this person this independent contractor that was shorting people out and they came back and said well we've already got something we'd like don't more interviews now what is wrong with that approach well except that that's not true they walk that that was not sony's argument to that effect was untrue because they did schedule more interviews they had more interviews scheduled from the initial pool of candidates and they even scheduled simone wu in for an interview who by their measure had zero qualification and this was after tiffany harrington had already told mr wang that they simply weren't going to talk to him because they'd already found someone they like even though is it your position specifically the record is that they still were interviewing candidates that they lied to mr wang to be harrington outright lied to mr wang that they were not interviewing any more candidates they were they were interviewing initial pool candidates talking about in addition to the ones that had already been scheduled well they didn't cancel anything that been scheduled and they continued bringing as noted continue to bring people but i'll also note the deposition testimony of brian frank which we hadn't gotten to the deposition testimony of brian frank which is addressed within the separate statement and then dressed within the argument mr frank admits that attended it with m lang's history skills education has qualified that goes unchallenged by so completely unchallenged that mr frank who was resume that he put in didn't meet the requirements right no that's false that's where sony said he was required that they screened out in the resume process and they actually show within the resume process and that their recruiter screened out the people whose resumes met what they were looking for it's only after this lawsuit is filed and after that deposition where again you're dealing with a person who's dealing with a sign language interpreter where they don't go further in to that surface level analysis that they ever come up with this argument at all and then after that deposition with all the opportunity to coach mr frank or whatever anyone wants to do they still admit mr frank who is who they stated was the person who made the decision to do the higher on the person who was hired mr franks stated that someone with mr wang's qualifications as was qualified for the job that is and so there mr wang consistent with the ego sees finding of cause of cause which they don't do particularly often mr wang was denied the accommodation was discriminated against but based on his disability in the hiring process at finding on us the e e o c is determination it is not absolutely binding but the case law as noted in all of the briefs the case law as noted suggests and itoshi determination unless there is a finding of outright perjury and ito see determination in the summary judgment stage whether a jury agrees or disagree c determination in the summary judgment stage is highly probative and in almost every situation should guide the court whether it's the district court or the court of appeal to  reject a summary judgment and set the case for trial you might save any time i will just wrap up right now and save the remainder again this is a summary judgment issue not a jury trial these are triable issues fact as to whether mr wang was qualified as to whether sony made this qualification up later all of these issues are whether mr wang could have come out or whether  why isn't sound he's decision to interview mr wang and indication that he met the minimum requirements for the position yes your honour's if he the various responsible people at sony testified to that specifically mr frank specifically stated that the fact that someone receives an interview does not mean that the person is qualified it just means that that someone that the company wants to look closer at well that seems a little why would you interview people that you don't think are qualified well of a person because sam on the m kid you it's just like yes if i know when i've interviewed people say if i require a b a for a position that everyone that doesn't have to be a gets put in the not qualified file and i don't look at them your honor in this case running mr frank specifically stated that what he does interim seven interview is to determine whether someone beats the qualifications for the position that's the way that  mr frank stated in his declaration to the district court that when he examined the deposition citations we are mr wang discusses his experience in java that that is not someone who shows the requisite qualified experience in java and that's that that was mr frank's testimony ms harrington also stated on page sixty eight of the supplemental excerpts of record that when she schedules people for interviews it's because those people were some additional looking that she  not make a determination about qualifications and so in this situation what counsel for the plaintiff is stating your simply about that mr frank made a determination that this person was qualified is just not accurate  qualified for this position and as we've cited to the record actually the opposite is true for your honour's there's been some testimony about simone rule and i want to talk about that for a miss harrington was that miss will showed you showed some interesting characteristics she was a stanford graduate she worked at google this was someone that the company was interested in taking another look out as thinks turned out interview was scheduled miss wood who had to postpone it not cancel it but try to postpone it and the company did not we schedule the interview because they had interviewed matched precisely the qualifications for the position and in fact your honors i would point to undisputed fact i think i heard a palin say and i'm yes so the record states that there was an e mail from tiffany killington to mr wang dated april eighth and that e mail  proposed to mr wang the possibility of some additional times to come in for an interview on april tenth miss harrington wrote back to mr wang again stating that in the interim that the company had interviewed some other candidates who showed some promise and that mr blank should check in again to see whether it was necessary to come back in that was the last to send that april tenth e mail to mr wang saying you know hold your horses we've interviewed somebody that we think we'd like that came one day after interview which was april ninth two thousand and nine so essentially that's the defense what happened was mr wang disclosed that he was deaf on march twenty that date so little words mr whining was in the same boat as the other candidates because he is his conform time was postponed indefinitely and during the next several in the prior to that april tenth date and in fact in the record in the supplemental excerpts of record at page eighty miss harrington communicated with trish o'brien who was basically the the person at sony who was internal to sony and handling the job interviews and transmitted mr wang's e mail string where he disclosed that he was deaf and said that ok let's set up an interview for this guy this was an email dated april second miss o'brien's response to that e mail to indicate that deafness was a problem or that the company would not accommodate an interview with a sign language interpreter nothing along those lines mr brown's only reaction  when basically given this information about mr wang that here somebody here's an email string it includes that he's deaf misapply and saw this this email string and her only reaction was a positive one sure cool and so in other words there there was no evidence in this case of pretext the cmon who matter as a matter of fact is consistent with sony's treatment of other people in this case which is namely sony decided that miss vaughan a pente who according to under speed in fact seventeen precisely met the qualifications for this position was was interviewed that had a ripple effect on the other interviews in this matter and that includes human it includes the other applicants there was no determination by the company that anybody was qualified for this position intil they were interviewed and securing something in this case the burden is on the plain t h to establish a  films that's set forth by the california supreme court in cream first the state of california it's his op legation that up legation was not fulfilled they attempted to fulfill it after the fact usually even that declaration if it were considered by this court which should not be but if it were considered by this court is actually very crafty that choppa knowledge only on a quote surface level only quote three percent of the time and that it was a in other words a trivial part of his job experience so in fact the the declaration really doesn't change that it's worded rather misleading plea and self serving plea but if you were to read it consistently with some help try to reconcile the declaration with the deposition testimony what you would find is that he says is that mr wang still had only the surface practical experience with java and what with the requirement was the specter job a surface acquaintance was it would that be sufficient not at all it was in fact three years of practical work experience with java that's directly in the  in the qualifications for the position and that is the match that miss from the pentagon had according to undisputed facts seventeen so you want to judge hell hans question was even if we consider the declaration as not being sham the declarations facts as stated don't meet the requirement of the of the employer that's that's correct the deposition testimony says you have been lonely worked in shop but roughly three percent of the time of the on surface stuff the only way to square that circle to reconcile those two statements is basically  say well i worked on some programs that contained some job done but i only worked in shop roughly three percent of the time only on surface matters infrequently right and lost any of the  members have any additional questions your time is expired thank you the questions before i start and candidate was someone he considered particularly interesting history when had worked at i b m for five years mr frank again admitted mr wang was qualified the idea that von append he was somehow this unicorn candidate doesn't hold with the facts miss vonna pente didn't have her second interview until over a month after her first interview or approximately a month after first interview and that was two weeks after the issue with simone wu where they said she had no practical job experience they it was specific in an e mail from a gentleman named hitesh lad but let's talk to her anyway and that gets to the final point i think i've argued the failure to hire and i think i've stated how we completely disagree with the district court's ruling however there's another issue too is that the failure to grant the interview in the first place is also a violation of and was one of the findings made by the e e o c was both the failure to interview and the failure to hire mr wang was given a mr wang presented sony with a specific alternative one that throughout the record is noted as a method sony used to communicate that's the way i am which doesn't exist anymore but did certainly did then and they didn't give him any sort of interview despite everything else despite his offering to pay for his own plane ticket to help them accommodate him his own plane ticket from his picket see new york out here to los angeles so i think the record is very clear and i know i'm over my time so i'm going to submit but i think the record is very very clear in this case the only sham here was this alleged qualification that they came up with after they realized they had broken the law  broken the law and that it is inconsistent in the record that it actually was any sort of qualification and finally that mr wang who had a master's degree and this was even covered in the deposition taken by the previous counsel had a master's degree dealing with job in addition to his work experience with that we'd like this to go to a jury to make those factual in the nations and on these truck the genuine material such as if your arguments in miami