case with every inference in favor of the plaintiff and yet that's not what the district court did and that is not what the defendant does and it's answering brief both further both the lower court and defendant improperly resolved  let me ask you a couple questions sir on the disability industrial psychologist who was by the name of amber i believe and he did in fact go see this industrial psychologist industrial psychologist told him that he had an anxiety disorder that had the symptoms of o c d after that mr marcus went to see his own psychologist at the industrial psychologist suggestion who did it did indeed diagnose him with o c d and that is that our three thirty one dr mark did diagnose him with o c d are expert wilson also about that marcus has an anxiety disorder with the symptoms of o c d there are three twenty five so dr wilson of that howard are three twenty nine that this disorder quote would significantly interfere with his occupational and social functioning well why wouldn't it be incumbent on him first some different job that would not require as much interaction it's not incumbent on the employee to do that your honor there's a case and i believe it is called humphrey vs memorial hospital it's out of this court two thousand and one the employer has the duty to explore further methods of accommodation before a terminating him that case held that it's not the employer's the employee the his own psychologist to get some treatment he did get treatment mr marcus told told his boss that he went to get treatment that he has o c d and within not too long after that this case i would have thought another meaningless acronym three initials i have no idea what you mean i have no idea what i'm supposed to do about it there's evidence in the record your honor that they had several meetings marcus had several meetings with his supervisors about his interaction problems interacting with others and it was in that context that he told him well i have all c d and i'm trying to do something for it i'm going to see psychologist i'm getting medication and so there's no suggestion in the record that his supervisor didn't know what   however it looks like this boss marcus his boss was actually protecting him from them rather than ramming them down the throat in a book about the closest you got to anything about marcus's boss was he left of his boss's joke didn't strike me as enough to show that marcus was fired because of anti semitism it's more than that your honor because it's a corporate culture of anti semitism and as as you may or may not realize and i realize it in law firms to the corporate culture comes down from the top and his boss was at that meeting where he really made the anti semitic comment anti semitic comments were made not it regularly oh th the lawyer who got an accident he must have been a jew you want time off for their high holy days that makes me uncomfortable you know this person who wants a job in the tax department i don't know if you can do that you have to work on fridays and saturdays market so the guy who kept making the quick shouldn't do that at a friend's market that's what he testified to but he didn't follow up he didn't investigate he didn't go back and tell marcus i've taken care of this he goes oh gee i'm sorry i didn't even realize it was an isometric that's the corporate culture that was involved boy that offended you i thought it was funny you know yeah i'll talk to yearly but i'm not going to do anything more to follow up on it between the culture and history and here it is at the luncheon where you really made the comment that was in december of ninety nine marcus complained about that when he submitted his diversity report also in december of ninety nine and said you people just don't have a commitment to diversity one month later in january of two thousand he had his pay raise withheld and slightly later on that year in november of two thousand  that's one month later in november of two thousand he complained about the pact matches to the temple not being made and in two months after that he got a lower valuation in january of zero one that was only two months later at the lowest of any senior executive and he was fired four months later i think that's enough your honor at least to go to the jury well i guess i was being on the march to save it i understand that but it is there anything the size that that shows that the term a nation as opposed to these other activities was involved whether some next between that and religious and part of the problem is that the judge the trial court judge didn't let us do any discovery on how other executives who were fired  terminated were treated because the trial judge made the decision that those people weren't similarly situated without even allowing discovery on the issue so marcus has said in in his deposition or or in his affidavit that in his view he remembers because he was in the h r business that these people all had better terms for their severance agreements than he did and they on this gets to the breach of contract action how he said that the company says that he was not entitled to fully paid up life insurance so long to long term disability in his memory those people did get those things and so because the trial judge didn't allow discovery on it it was difficult for is a duty on the part of the employer to make an accommodation and it does say that except that it says when an employer becomes aware of the need for accommodation yes so what was the combination that was required in this case necessary to accommodate the o c d well if you look at the r three eighty six that is a employment review where he company said he's technically competent he's analytical he's great he cannot function when you interact with people and it said that he would do well in the union negotiation aspect of the case of of his job but not in the human relation aspect of it and if they had given him duties that involve negotiation the labor negotiation type of things he would have succeeded in that because that's what they said he did best so your view is the accommodation of the employer at that juncture should have switched his job duties and alternative employment because he could not get along with people in his job and if he was limited to the negotiation aspect in the labor aspect he probably wouldn't have been fired because of it all of his lower value ations were because of his disability the o c d or because he was regarded as as disabled in that regard some of them fall within one or another category get some special federal protection and the problem that you have is showing me that even though a whole lot of people are being let go just because there wasn't enough money to pay and this person was like go because of illegitimate reasons and let me show you the next that is judge thomas that's the hard part i think what you're getting at is the is there evidence of pretext for the jury enough evidence in the record for pretext then there is and here it is marcus was never listed as an employee rift through three drafts of rift document i thought he was listed but they didn't kill him until he got rid of some people under him companies often do that occurred and the only time he was listed it said standing by his name which means no refused to stay he was given no separation date like everyone else he was given no severance documents like everyone else he was given no outplacement counseling for weeks on like everyone else and the company didn't follow its bylaws which said when you're terminating a vice president you have to have approval by the board and there's no evidence of approval by the board so the company didn't follow its own procedures with respect to him when they did follow its procedures with respect to everybody else including the other vice president all these facts are at the are two fifteen one twenty seven one forty two one forty five to one forty seven and to ten lack of uniformity in this respect is facts evidence of pretext now the defendant's going to stand up and tell you so what all these things were for his own good we didn't want him to know about his terminations and he has reasons for this but that creates a fact issue because there's enough evidence that that's the non uniformity and how he was treated is for the jury of whether he w or whether it's just a pretext for termination i'd like to say a word about the religious discrimination claim a word about retaliation and try to save a few minutes for rebuttal on the religious discrimination claim what defendant is trying to do is separate out all that all the different areas the different aspects of anti semitic events and comments and say well this one particular was too too far away it was too long before there with the guy is gone so what but that's not how the court has to view the evidence the court has to view the totality of the evidence it doesn't matter if you really left before it's the whole corporate culture does the totality of the evidence suggest discrimination in the form of anti semitism and it does and we went over that some before all that lawyer he musta been jewish admiral rickover the guy who humiliated me jewish wrinkled bastard a lot of you don't like that comment you know i didn't even realize sorry but i'm not going to follow up i'm not going to investigate i'll talk to you early but i'm not going to say anything to the board and i won't follow up with you you want time off for the high holy days a month comfortable with that i should use get off the days that no one else gets you want this job in the tax department i don't know you know you observe the sabbath complaining about tax matches to temple beth israel we're just not doing them any more and we never should have gone in the first place but i'm not going to bother to answer your question about whether other organizations were similarly affected here at lunch with a former employee i can't believe you're jewish and you're still there a jury could take a look at all of this evidence the totality of the circumstances and decide if there was discrimination you can't just separate them out  word about retaliation we need to have evidence of protected activity adverse employment decision and a causal link we have the adverse employment decision we have also have evidence of protected activity marcus told his supervisor that phelps dodge was not diverse and it was not committed to diversity under represented females and minorities he complained about the c e o s bigoted remark he raised concerns about the pac match contributions to temple b israel and when he raised that concern he said he asked whether the company's decision affected any other organizations besides temple beth israel and that shows that he was concerned about discrimination and he testified that he was concerned about discrimination and that's it e r three forty nine and three fifty one in three fifty two so at a minimum a reasonable juror could decide that he believed he was engaging in protected activity by making these complaints and that is protected activity is when you oppose an employment is that you think is unlawful so at a minimum a jury could decide that he believed he was engaging in protected activity we also have the causal link if you want to try and get a protection yes sir within one month of complaining about the c e o s remark and that the company was not committed divert to diversity his pay raise was withheld and then november he complained about the pac match two months later he received a low valuation and then he was fired there's another evidence to get to the jury on on all of these claims and i would reserve my two minutes and forty five seconds as well as on this appeal number one the extent that there are any disputes in this case it seems to be between the plaintiff himself and his lawyers my example is including working and including mostly being able to work with and get along with people is the acoustics in your are all i'm sorry i think you said that his view was that he was not disabled is that wh view is that he was not substantially limited in any major life activity yes there are and that he most importantly in this case is able to work with mostly work with and get along with other people and have the records show that  cannot interact with other people and in comparison this is a far cry from the plaintiff for example in the gallery versus county of san diego where he was truly unable to interact with people and in fact put himself in his home for twenty hours a day because he couldn't hack with people mr marcus worked at p t stodge for thirteen years and progressed and was promoted his job by virtue of being in the human resource department you seem to be giving him certain here why was he really he was rift because the job that he had no longer supported a vice president position he also was doing the work that was already being done by what was the former director of compensation and benefits when that person resigned two years prior to the riff those duties were absorbed by several other people marcus had no job left and that's why mr polaski decided when he was directed as other department managers were to cut expenses like thirty five percent that this vice president needed to be eliminated and that is what he told mr marcus as well i guess the problem i have with that the theory that because he testifies he can interact with other people that's true that he can is that a lot of psychological disorders include among them the failure to recognize social difficult could not begin to address the judge kleinfeld because that's not what was actually presented by mr marcus i thought there were medical reports that basically did present there not mr marcus after discovery clo marcus his symptoms alleviated and he performed well and in fact the very symptoms that mr marcus and the plaintiff identify as symptoms of o c d mr marcus testified were symptoms that he thought served him very well in the kind of job he had to do for us sure let me ask you about something else there is a case that we have called true wang versus university of california we held in that case as far as i can tell that to remarks by a boss were enough to establish a genuine issue of material fact and get pissed summary judgment under the mcdonnell douglas pretext analysis one of the remarks was to change and the other remark was you should pray to buddha for help and i have some skepticism about wading through everything that ever happened at a workplace for nasty revel disclosures of bigoted attitudes but that seems to be the and it's hard for me to see how to distinguish this case from trying i'm happy to do that i'm very familiar with chang however it is pronounced and we do to address that in our answering brief huge didn't seem material to anything well if he's talking about the only one that i'm aware of other than yearly is allegedly mr reply goal in one thousand nine hundred ninety eight when discussing a car accident kaplan and he came up with the story that supposedly what mr replaceable said whether ms kaplan was going to be denied a job because they would not accommodate the days off that she needed for her religion in fact when pressed mr marcus admitted i don't even know if mr kaplan is jewish i don't know if she got the job and if she got the job i don't know if she was accommodated it is pure speculation as he said very sarcastically when i asked him he said well maybe it's our little secret handshake p d would not have known when i asked him how would p d know at the time of the riff which is the subject of this case who is jewish and who isn't and his response was well it must be our little secret handshake he didn't know who was jewish who was laid off who was not laid off and that's the issue in this case which was the reduction in force  coming back to mr you're his comment i would place that in exactly the same situation as the plaintiff in clark county school district versus britain where no person particularly a person who had spent his life in human resource management would believe that your lease comment and i'm also going to be addressing chang here your honor that had nothing to do with employment as the decision maker in the chain case and telling an anecdote about having been ruled by admiral rickover to be considered a one time incident as a activist rumination or harassment moreover like inbreeding story one would have to speculate was just a lot of laughing at a funny story about having to get up and sing his college fight song that admiral rickover was wrinkled a bastard or jewish people were rift in terms of what it said next to his name on the list and whether he was on the riff list in the board approval and all these things truly a red herring in this case your honor first of all nobody's name was on a list one hundred eighty people that were rift up to the may sixteenth two thousand and one nobody's name was on a list the matter went to what they called the senior management team and then ultimately to the board where they presented the plan called two thousand one restructuring nobody's name was on the list moreover because mr marcus was an integral part of the factual data in the rif mr plotty testified and they have produced no evidence to the contrary that he didn't tensional a not include mr marcos's name he did not want him to know that he was being ripped because he also had a job to do and whether you think that's not a nice thing to do the issue in this case as far as different treatment are two reason is reasons if there was different treatment that would have occurred on he was a vice president the other people were not at that officer level he was however treated exactly the same as robert swan the other vice president riffed who i might add testified he was a methodist and did not have o c d the other difference was both mr marcus and mr swan unlike the other people riff and specific written contracts that had been written in advance that in the event of for example a reduction in force or you lose your job easier the terms and conditions under which you will be laid off and that contract set out the terms which was different than the other people for example outplacement services other people that were riff that morning were given out placement service options then and there mr marcus had in his contract the right to a placement services but unlike the services right in the other people this contract gave him the option of doing getting outplacement services as he chose whether or not he was rich at ninety in the morning or six at night we simply what is certain is not a material fact because obviously he was in the process of administering the  i do want to point out because there is argument that i think it's because i'm going to an earlier question she was me to interrupt myself to come back to your question did i answer sufficiently your question about the change case because in that case it was actually considering the hiring of the two asian americans when the offensive comment was made to the decision maker in the case about the hiring or non hiring stating and i believe the quote is we don't need t more chinks in the department and the person who made the decision and ultimately failed to hire the two asian americans was the person who laughed mr yearly comment was not about anybody's employment a think that in this case there's a lot of argument about whether he was regarded as disabled and i do want to point out both in his complaint and his counsel and in the jointly with the true lawyer comment that struck me as the most interesting here because it's less ambiguous and more gratuitous not only two years before or longer before the reduction in force he left even before mr plotty was  hired and really finishing off on that your honor this whole idea of this corporate culture trying to go back with hearsay anecdotes which is inadmissible whether we objected to that in a lower court or not it is inadmissible hearsay evidence going back to when b it is interesting to note however that in this alleged culture of anti semitism that existed going back if you believe the plaintiffs been to when phelps and dodger wielding pick axes that mr marcus was promoted to vice president of human resources in january one thousand nine hundred eight that is when mr a political left the only thing that occurred after that the ties into religion believe that somebody regarded him as disabled doesn't make it so and she said she thinks he's in denial so couldn't back up for a second there's something that you've said two or three times usually about  marcus is boss tells him that he heard somebody else make an anti semitic comment and marcus testifies that is false told him that he heard somebody else make an anti semitic comment i don't understand it here so it seems to me that the anti semitic comment is not being introduced for its truth the only relevance this whether it was said at the cost is not testifying that it was said true but in the context it's probably within the admissions exception so i'm not sure i follow what you're saying not the decision maker must have gone more than two years before the event that i must i'm not made myself clear ok what's your say that we should not regard as evidence under rule fifty sixty anecdotes of corporate culture of discrimination at phelps dodge which mr marcus testified came from somebody testified that if you spoke spanish in school he was slapped that at some time in the ancient past some people refer to phelps dodge as presbyterian copper that he heard that there was separate housing for people back in the days of your these are all hearsay anecdotes and that's our point because the religious discrimination if i'm understanding the plaintiffs argument just to feel i'm jewish and there's a corporate culture i believe there's a corporate culture because of these hearsay anecdote with regard to i need to just address very briefly in the time i have left this retaliation claim the plaintiff alleges that he must have been retaliated against because of three things i want to bring up the very first one claims he wrote an e mail complaining about something called the pack match program if the court reviews the record at i can find this excuse when he was the one in charge of h r about diversity an affirmative action because p d everybody agrees is an under no legal obligation to do that it was polani who instructed him to do it it was a report he wrote was a palazzo use direction and because of that he's claiming now that because plotting ordered me to do this and i did it somehow plotting retaliated against me because i did what he told me to do and that is simply not accurate and the last one was and we have spoken at great length about your comment  i see my time is up there's so much to say but i will say that inclusion that this is a case that really is a creation of stuart marcus drawing conclusions that are not based on admissible evidence in this case in the record thank  and he didn't he wasn't required to and he he couldn't as is a matter of job issue that's in the record the difference is in there with council indicated that no one's name was on the list or jewish the issue is it's one more in a series of events that show anti semitic discrimination were not making a claim for mr kaplan it just shows that judaism was an issue where it shouldn't have been the court asked counsel why he was rift why was mr marcus rift if he was such a good employee and the answer was because his job duties changed but both pahlavi testified that the reason they weren't keeping him on and finding him alternative employment was because he couldn't get along with others and that is exactly because of his o c d and so that is an issue for the jury defendant would like to say that's why he was terminated but the fact is that the facts are disputed and those facts are for the  jury the court asked well he was progressed and he was promoted he was such a good he was a good employee all this shows is that he was qualified to do his job market he wasn't disabled or regarded as disabled he was that he was a very sick he's a very smart guy he's very analytical but he has this issue that needs to be addressed in a way other than termination he did testify that he can eat and walk and personality disorders that they make people socially unpleasant to those around them it also looks as though the company didn't know that there was some sort of accommodation he needed  personality disorder there's some kind of medical diagnosis there they don't know and on the jewish thing it looks just so there are people with anti semitic attitudes around the company but fact of the matter is they're getting rid of a lot of people and they got rid of a guy that some people found them plus i don't think it's up to a case to at least i don't think it would under trying but i'm not sure  that's my kind of understanding of the whole the circumstances and certainly they have excuses for what they did and yes there's anti semitic behavior that shows discrimination but you know it's not i don't know that's an issue for the jury your honor the enough evidence of a culture of discrimination there where he was complaining about lack of diversity he complained about the pac match he was not given his raise two months later he complained again about diversity in two thousand about the pac match and that he was he was not promoted he was not given his race and he was terminated there's enough there for the jury to decide this issue here your other question your premise i don't want to go through the whole thing just for give you a chance to address that your honor the bottom line is that we don't want the court to make the same mistake as the defendant and the district court in deciding these factual issues