race discrimination cases are extremely difficult to prove in the absence of direct explicit racist comments but this case typifies why we have the analytical framework while we have the burden shift and  responsible for the subordinates but in terms of i think the record shows that mr prized complain about these managers not performing asked for assistance and he did not get it and with regard to his specific performance and we're talking about the artists that miss easy as easy did with his store in terms of how these violations occurred who was the swing manager at the time was this is a manager at the time sometimes to which a price wouldn't be on the premises got it and i think that kind of shows the underlying subtle type of discriminatory animas that was brought against him if you take a snapshot of mr price's situation very is then a manager  management that not money not just at the store but in management came in as a manager for seven years without any problems no just one a and actually track record this is easy comes in as the new areas of us are and within six that was the case from the sense of the company and in part this specific supervisor giving him negative i wish so that he could not be promoted for other opportunities and i think there was a as a dispute as to whether some other positions by her that's what it's  how does that indicate that he's complaining about her promotion from it says she couldn't she couldn't even suggested him to that treatment before her promotion correct or not i understand that from was a challenge or meaning that they needed someone with a special type of leadership to get the sales turned around now if mr prize wasn't a type of performer if you were someone who was not if you were someone who was just average you would not put just an average person to a store they had all these problems you want to put some money in who you know is a leader you know it can turn around and that's why he was at that at that store and he might need some time to do it for a fact that he thought and he got from not in february after just look at the the trends in the record you talk about the trends his overall performance in terms of he was always improve when he was always getting positive evaluations and the company talks about how you look at that in the aggregate in terms of whether someone should be promoted or not so we're not only talking about the free time which at the car store was talking about his past performance years which as a record shows mrs ede of the not even bothered to look at those specific but i don't i haven't seen anything where mcdonald's sets up and post these are the positions for which you should do apply that my understanding is that was not to practice the practice did you you have to sufficient we're talking three weeks that the jury should least take a look at all how's that possible why did that happen and then you also look at the circumstances around that suspension the policies that madonna's say i have a period some period who knows how long three weeks three months six months when if you dare to take any action against me of any kind i've  been sent or went to a program at some time to make sure he understood meton state and anything here was again violating the policy and we've got a little frame here by him which   he still almost let's say didn't almost violated the policy again no question about that as are i mean he agreed to go out and then when he proved and then when he provided his explanation as to what he was thinking regarding why he did the procedure the way he did it yes i think that should have been a separate by now they said they separate but received that show that he's been told the policies he comes very close to violating the employee thought he was he was violating it he says now i just came real close to violating i you for one week because their guidelines say before we impose just one we're going to take statements we're going to counsel we want to develop the entire record which they did not do and continue and that in light of of this this proactive approach that the company has with regard to managing managers so that they can be efficient administrators when you don't do that you have to wonder what is the within six months of the new supervisor and again you want to go back to the previous answer that you say what he's done before that's disputed and that was all part of the frustration that he was getting from this is easy that she was and exeter record fifty four well it was part of the investigation in the sense that they had gathered all of the evidence time sheets statements from others and he concluded in view of the fact that he had gone to the seminar and had gone to and had been accused and there'd been evidence of a prior problem in this area did made a decision to suspend him however when they presented that to him they did get a statement from him wherein he admitted to the wrongful conduct had he come up with another explanation that said no this did not happen then they certainly would have been free to not suspend him at that point so it's not as if they had irrevocably decided to suspend him before they got a statement and i would only also add that the guidelines to which the appellant are first to do not specifically state that of statements from whom they have to be taken they simply are  advice on how the statements are to be taken but not from whom but i really think that's not so much the point because with regard to the retaliation case you have a situation where the misconduct which triggered the it's a little bit more complicated than that and the reason why it's a little more complicated than that is what happened is the context in the context of the retaliation case is in the end of may the plaintiffs makes an offer to  about working overtime and working continents that have the overtime and not being paid your time premium this is a huge issue for a company like mcdonald's in california on a daily basis there are wage and hour class actions filed there w our claims filed mcdonald's has to be take a very strong line against these types of situations that can please me if they start the investigation five days later after they bring that to him and have a discussion musical incident with him five days later he files an e s u charge that's on june third on or about june thirteenth he and other managers are sent to a wage an hour seminar where he  specifically told do not work your employees off the clock do not provide calm time that's illegal you have to pay people overtime a week ten days later he does the exact thing that he is told not says that he made the offer to mr that he's a you can go to this food safety class and you can work a day off and get paid for it and you get the comp time but not the overtime the said no i forgot he said make sure you pay me i said ok and in a laughing matter he said make sure it's over time ok i said yeah no problem if mr d he had not gone to been punched and mr diffuser have had what actually happened was mr diffuser went to the food safety class in the morning he's working the night shift at his restaurant he comes to the night shift punches and when he gets there at about four o'clock or six o'clock i guess he's already worked eight hours at that food safety class it's not on time records because he couldn't punch in that that wasn't at the time or what he was it was a store he then works a complete shift mr price and it's in the record mr price has to review the time records on a daily record says gee i never got my overtime and then he changed the ultimate question here is really whether any reasonably sure he may be quite persuasive play and you could make this argument gerry and i'd say you have a seventy five to eighty percent maybe more than that chance of winning but the question really is whether any reasonable during clean and otherwise on their record given a very short timeframe between the  it and said look if he if he had changed the punch out time for mr if he said no how could he have forgotten that mr b he's a had gone to the food safety class when in fact i know  they want these people to south correct which is what happened here well they also want to make sure people people managers do not ask subordinates to work off the clock and mcdonald's is extremely sensitive to that and so what they did was they found out that he  food safety class right ok and then at night he punches out when he goes home and at midnight he didn't punch the problem well he worked at the food safety class and he had not punched in so there's no record of those hours that had to be done by a manager said this is you violated the policy and i think that that is really the larger point here is that there's no dispute that he made the improper offer and i don't think that it's the province of the jury to be the super not super is that you have to then say that a person files in a u s c charge as judge fernandez just indicated for more eloquently than i could that you're socially going to get out of jail free card for a certain period of time that no matter what you do even if you violate policy the violation of the policy is what is mandated in the business of apologies it's a one week suspension and that's what happened he wasn't fired he the policy say that if you violate the policy doesn't matter if you correct it later if he was not promoted in december that is that is a new admission today and i think it's a wise one because there was no basis for it but understand her first and i think it's important to understand the timetable here on december first or  mcdonald's promotes in los angeles region eleven managers to area supervisors of those eleven managers to are african american plaintiffs is not one of them in december and january mcdonald's promotes to other employees to africa to various supervisors one is african american one is hispanic the last one who was promoted is on february the tenth two thousand and two from february the tenth until after mr price resigned no one is promoted so we have an admission in this case that supplemental excerpts of the record one seventy three lines twenty two twenty four question so as of february twelfth there were areas where you needed to improve so you could be promoted answer that's correct so he's admitting as of february twelfth which is at the point where there are no nobody else getting promoted after that point he needs to improve his performance heaney insole effectively is not qualified to be promoted now moreover in january and december there is much evidence in the record showing his poor job performance now on january seventeenth you know that now would be more convincing if we knew what grades other other franchises were hearing i mean that i look at those and i don't really know what to say or an ant for anything else unless i know well that's an unusual greener than well i understand that but first of all the grades that were listed in the second of all i think that it is certainly the plaintiffs burden in this case to show discrimination and as part of that burden he would have to present comparable evidence that stores were equally bad and people got promoted from them he didn't do that there is evidence on the record from mr kant are the decision maker that this was poor performance and didn't justify a promotion and i would also add with regard to mr cancer he's the decision maker he's the one that makes the decision whether he gets promoted not answer do i think that sam has always treated me fairly is that your question question that's right answer yes so he admits that the guy who supposedly discriminate against him or certainly would have made the decision to discriminate against  there were two people promoted one of whom was african american on january seventeenth mr cantor met with mr price and had a meeting with an h r person to talk about his poor job performance this is the january seventeen memo and on january seventeenth what happened was they talked about it and mr price it knitted in that document that he had a variety of performance problems with his store labor violations misplaced time admitted everything in that document was accurate and that's that supplemental thing and that and he also runs explaining that problem with certain people and he i don't know the implication was he watched them transferred or something with them  refer to that first of all he admitted in his deposition and this is at the record the supplemental excerpts one twenty three line sixty nine that he was ultimately responsible for everything that happened in school and the question i'm asked ok with regard to assistance mr kan testified in his declaration that he provided when mr price asked him johnny some other people he provided to assistant managers who were the best in the area to assist him that was in december so i think that when when you when you sum it up that this is a fact case and the facts in the record really demonstrate that mcdonald's did nothing wrong in this case they certainly did not feel to promote mr price because of his race and they certainly did not retaliate against him because he filed an ego see charge we know that he admits that he wasn't he needs to improve his performance he admits also that mr cantor the one who supposedly retaliated against him made the decision to suspend him always treated unfairly you can't have it both ways and he also admitted that he engaged in the violation of business policy seventy three the judge got it right and we think that the decision to grant summ judgment in this case should be affirm declaration paragraph nine when i for mr cantor that mr ramirez left me with sub standard managers he simply replaced them with other substantive managers in response to the issue about the scores comparison the evidence that we submitted is from mr price himself and that's also under tad ten excerpts of record page one twenty six paragraph eight where mr price personally reviewed the quality and service and and that's also under tab ten in mr price declaration paragraph six the ultimate question again we're talking about whether the jury could find that there's something going on why would mcdonald's deceit deviate from their practices they have these policies we're go