it seems to me here on his that this case really boils down to the district court overlooking critical elements of the prime official case of discrimination retaliation and then after misconstruing those elements overlooking conflicting evidence that creates a triable issue of fact that should afforded summary judgment in this matter i believe opposing counsel's arguments could be excellent in front of a jury if a jury would were to believe that my client said kiss my butt but and that he's fibbing about it now i think a jury could conclude yes that's insubordinate activity and therefore determination is warranted but summary judgment my client says no i never said such a thing no i never raised my voice no i never behaved that way and so since he says that is the court well knows it's summary judge me have to take what he says is true in your view do you defeat summary judgment in this case even without reliance on affidavits and declarations which is it enough that your client says that just didn't happen and you mean it without relying on his own effort you know with the i'm sorry without relying on the ones that the judge excluded from whatever source was out there ones about  to similarly situated in bryce oh absolutely absolutely there's more than enough evidence here with a he said she said sort of thing like this is well this is summary judgment it's not a job interview i guess when you have a he said she said like this you have to have a trial about it how do you how do you i mean what i'm asking i guess is a little differently you have to show crime a face a case of racial discrimination as opposed to that they get their the reason if said they fired him is the wrong one how do you show a crime a crazy case of racial discrimination in the absence of the excluded f and that's an excellent question your honor one critical way to do it that many circuits have recognized is that if the employer's explanation for the terminations is deceitful if it is not consistent with the facts then that alone gives rise to an inference or pretext because if they're lying about it it must be to cover up something bad and that would be the most likely bad reason i landed with the reason i was asking is i wasn't sure whether or not show the fourth element which is either that similarly situated employees are treated differently similarly situated employees of a different race are treated differently or other evidence that gives rise to the inference of dissociation so we plausibly platted you get past stage one and stage three in order to rebut their argument or non pretextual reason does he have to once again show racial discrimination or is it just enough that he shows that the not pretextual reason may not be true it's enough to show the non protection of reason may not be true that's under reeves v c i see that's what i was i was doing what confuses me a little bit about this case is whether or not it was really your client's burden at stage three to show my facia case of discrimination which is what the district court concluded whether it was your client's burden and stage three simply to show that the reason that the employer gave the non pretext to reason wasn't  true that's why i was that's why i've been asking these questions i'm not sure why the judge is is is looking at the racial discrimination part of this as much as whether or not you have met your burden that stage three show that the proffered non pretext reasons were might be protected i was a little confused by some of the district court's approach as well and i should have asked at the beginning if i may reserve five minutes for about i was also confused by the way the district court did it  having clerked for the ninth circuit myself i know courts are very busy and i think that there may be own inclination to say look i can tell a good case from a bad case and so i'm going to kind of short cut it if i don't think this case really is that strong  judgment and maybe we'll be done with it we won't have to have a trial perhaps judge jones thought that my client didn't have a very strong case but because it's summary judgment really that's the purview of a jury to hear my client's testimony and to hear  and figure out who's more likely telling the truth and if it's paulus is more likely being deceitful that alone is evidence that creates the inference of discrimination you do with the hearsay issue the judge the district judge excluded some evidence that you proffered on the on the on hearsay theory tell us why he was wrong doing that i think he was well under existing case law it's clear that in order to save the nonmoving party from suffering a summary judgment judge jones could have said well i'm going to allow some hearsay and to defeat summary judgment so long as i'm pretty confident that once it gets to trial that that flaw will be able to be cured is that a discretionary ruling by the judge it sounded like the judge could let it in and i'm then we'd be refused to discretion i mean what the judge had done that in my client's favor of course i would be standing here right now but if he had done that i think that would be a discretionary call well put a different way what is the required type of evidence to show that at trial there would be admissible testimony that would not be subject to hearsay my recollection comparative that's a really good question in my recollection from the authorities that i reviewed is that it doesn't really spell that out very clearly for us we don't know what standard of review to apply unless we know what level it is a question of law is a question of the judge's discretion i think it's a question of law though because right now the authorities say that you can do that for the nonmoving party there's no authority in the world that says that you can do that for the moving part right but with the with the with the nonmoving party you present a second issue great so let's just assume worst case scenario for me that it's under the abuse of discretion standard that alone might not be an abuse of discretion but for the fact that he judge jones did the opposite for the other side he allowed them right you know so and so  one off that's an abuse of discretion is your argument strengthened by the fact that your client also not subject to hearsay submitted a declaration saying i dispute that these facts occurred absolutely absolutely and that's why i think opposing counsel might have a very good jury argument of anyone who's believed but when my client says a summary judgment i didn't do those things the one thing if you know we're talking about objective sales numbers and he says i had fourteen sales and i said no our records show they only have i mean that would be a different story but here we're talking about subjective criteria which as the court knows is very very suspect and discrimination cases because it can be used as such as a mask for you know racial animosity so i think the judge made the same mistake with the retaliation claim you know i mean the case i was just very glad to let me ask you about her tell you because it looks to me and tell me we're wrong on the evidence in this case it appears that the decision to fire your client it seems to be undisputed was made before he made his complaint to the agency so how can the how can the firing be a retaliation  for making a complaint i am glad you asked that i respectfully disagree i think the recommendation to terminate his employment made by ms paralysis was made before he submitted the claims to the agencies that's true but the ultimate decision to terminate him was not just paralysis that was just a recommendation and i have to say she made that recommendation after he had told her i believe there's grounds for you you know for a complaint that you're treating me unlawfully you're trying to find out what the first amendment issue is the retaliation has to be for going to aid you know for filing a claim saying to your superior i think you're treating me unfairly doesn't give rise to the retaliation claim i beg to differ most certainly does there's two different kinds of protected activity one is actually going to an agency or actually participate in an investigation but the other kind is also complaining to your supervisor that these are you to think that you can make a retaliation claim your supervisor says i don't like your performance you say i beg to differ explicit that this is a racial complaint that he's making a complaint of recent st i have to concede that some courts seem to suggest that you do have to be that precise but other courts kind of saying no it doesn't as long as you know what somebody is talking about don't you it honestly in my opinion he honestly did and this comes from the perspective of somebody who has spent ninety nine percent of my career defending management i only take employment case for plaintiffs when they get up on appeal i wish i could defeat  i got a lot of summary judgment motions and some like that defending my clients throughout my career and so my honestly my honest perception as defense attorney who defends employers is yeah he said enough here he said look i have legal grounds i believe you're treat me differently than other employees differently why i mean obviously he's one of only two african american employees in this whole sales force and so i think given the circumstances of this case he did say enough and then in different part of the record he actually  says he used the word discrimination as my recollection and one partner's deposition testimony said i think i have legal grounds for this you're treating me differently differently than other employees but there's a different part of the record that i cited there where he said something about discriminatory fashion what is your best ninth circuit case for saying that what he said was precise may it please the court thomas peterson for the apple the charger up and like to start with the discrimination claim and i'd like to go particularly to the the the fourth element of the prima fascia case which is the requirement of disparate treatment as compared with people who are not part of the protected classification there's there isn't any evidence here that non african american employees were treated any differently don't the affidavits say differently well your hon the no i don't think they do that all right one of the participants in the call said that there were caucasian people on the call who raised their voice who argued with the person for management him are wrong wrong and i think i think what you may be recalling is the declaration of mr wagoner wasn't a declaration it was the statement of mr wagoner adam way again or who was who was a caucasian gentleman  he he played if purported to testify they said in his declaration that he spoke up but he wasn't on the call at that point he'd left the call so that's plainly hearsay where there is there is a declaration as i recall perhaps you're talking about the way again or state mess the way right ok the wagon or statement is not a declaration at all it's not verified it and no doubt and notice also that as to these other statements what happened was a series of statements were submitted in june and then in july most of them were turned into declarations mr wagoner's wasn't with respect to wister way of going to her statement what he acknowledges is that he was threatened by the same  paralysis forward for before for before action based upon his conduct in the call number one and number two he he resigned from the company so we have no way of knowing whether he would have been treated less consequential back time  just rosenthal i started asking questions of your colleague and this isn't sufficient to make the prima facia case that he's an african american who was fired and who has established a question of fact about whether the reasons given were pretextual i think that i think your honor that would be the net now we've moved out of the prima fascia case i think into the last element of the macdonald i think let's assume that he pleaded prima for sure all right stet stage one stage two as you come back and say we didn't fire him because he was african american we fired him because he's allowed to use it to use a short short  m he comes back and says i never did any of the stuff that they used me of why doesn't that get him to a jury it doesn't because you i think you have to look closely at what exactly has been controver just three incidents and he says none of them ever occurred he doesn't do i didn't do them not the way they were described a way to describe all that that's that's important or honor he does he doesn't dispute the only incident that he says never happened relates to the april eighth counseling for the lower sales he denies that occurred of course he was discharged for violating the company's conduct policy the othe two incidents relate to that and he doesn't deny that they occurred what he says is that i did not behave in a way which would justify discipline in effect what he's saying is i didn't yell i didn't use profanity denying what happened in the rose doesn't say are fired because he was on these phone calls and write spoke she says she used profanity he did the following things that's why i fired and he says no i didn't he may have been contentious on these calls but that's not her reason given for that's not the reason you're not pretext for a reason it's that he used profanity and was and he says i didn't do that well at that the reason assigned as he did violated the code of conduct policy which is the way you behave around the office and it's not just comes down to profanity it comes down to the reaction about his demeanor and behavior now it's true he says my demeanor and behavior was fine but the problem is that's that's basically a subjective determination on his part about whether or not his conduct was acceptable the employer you know is supposed to let the employer has to show is that the employer had a reasonable basis for  concluding that that he should be discharged and that basis has nothing to do with a discriminatory animists that's a subjective employer evaluation that the employer is entitled to make in the mere fact that the plaintiff comes in and says my performance was great my performance was acceptable that doesn't create a triable issue of fact it in under cases like this court's bradley case that says that's insufficient to create a triable issue of fact and again he's not denying that these incidents occurred again with the exception of that business about his sales performance why he's denying he's not denying it's not denying that there were interactions on these occasions he's denying that his conduct during those occasions was such was the conduct that mr morale is described you know they you're describing you're not protect your reasons is not is that for he's denying that his demeanor and behavior was inappropriate in the in that context correct what is he supposed to say to create an issue of fact i think in order to create well he could show a lack of comparability in terms of treatment as no no i'm talking about i'm talking about whether or not your reasons were pretext well he had he has to create it's true that you can create an issue a pretext if you create a credibility issue with respect to the employer's stated reasons but what i'm saying is when you do not deny the basic relevant encounters let me just leave it there but i had three meetings with this person who now says during those three meetings i was discourteous and it's cetera et cetera and  say i did up those three meetings with this person but i wasn't just curious why doesn't that create an issue of fact because under cases like bradley i don't think the employer the employees of affirmation or declaration that i be hate appropriately that might isn't because it's too subjective there is an element of subjectivity to it your honor but but it's but the point is it's the employer is me absent absent discriminatory animists who gets to make the workplace decisions were you really don't have to try the question or assuming the conclusion well i don't think let's not get i'm trying to figure out what the opposing declaration or affidavit supposed to say so let me just give you a hypothetical so you don't have to tell me i'm wrong about the facts let's assume that mr morale is said i have three meetings with him and during those meetings he was abusive in discourteous and that's a good reason for firing somebody the employer gets to make that decision finish my thoughts and that's a good enough reason for employers saying i want your and anymore and he files a declaration and says that's not what happened is that enough no because because his his his evaluation of his own performance on something like this well but it's not it's not an evaluation of his performance he's saying what she says didn't happen it's that he's not saying you said i have three sales when i actually have six that's not what's being argued about i understand your honor that's it's different but my point is there there is there there is an of valuation that is being made about workplace demeanor conduct in the which is under review no i'm not saying  it in this context it's not reviewable it's not actionable as well i guess what i would say under the civil rights laws in last you can you can do more than say as as the employee i  behaved very well this this isn't right i didn't raise my voice that that does not understand human abuse respectful and abusive and my response is the employers to say no i was not disrespectful or abusive that's not a question of fact i don't think it creates a question of fact as to whether or not the employer was motive and not of material fact with respect to whether the employer was motivated by racial animus i don't think whether or not he was abusive or not is the is is really the question that would have to be resolved if you tried this case what would have to be resolved is whether he acted with racial animus with the employer did and that would he was the only employee file fired in the last seven years at the company was african american and the company came back with exactly what it said here you know we didn't fire you because you were african american we fired you because you were abusive in meetings and he said no established in the first place enough to to get to the jury on racial discrimination no i think both your honor because i don't think it and especially well that's why i gave you that's why change the facts so let's take a blatant case of racial discrimination and they say yeah we hate to fire the only african american guy we have but he shows up late to work overtime and he files an affidavit that says no i don't i'm on time every day doesn't that get into the  mean i think it's relevant to that too but but i don't think it's and to the inquiry with respect to pretext i think they tend to overlap to a large extent so if you have an edition i'm sorry go ahead finish your thought well i also wanted to mention you know we've sort of gotten into a tunnel here about what we're focusing on you know there's there's other important factors which bear on this as well which have to take into account which is that miss paralyses who made the decision is the very person who hired him  that were also there but yes so that's that's regarded as generating a very strong inference for the defendant mr walker testified this is in the record two seventy seven to two eighty that no one at charter ever displayed again i go back to i don't think his mere denial with respect to his behavior when you when you take into consideration the whole context which you have to do is enough i don't every case there's going to be some collateral argument about some facet and i know judge rosen's i do have one doesn't mean that the rest took two real quick questions the first is if you add to this mix not merely his own no i wasn't statement but also the evidence that at trial i would be able to bring you mr wagner who would say x if you add to that is that enough to generate a factual dispute material to determining pretext or the credibility of the employer's proffered reason that's first question second question or tell was he specific enough in the oral complaint to miss paralysis first and don't worry about the current verdicts are sort of a first answer the code is very very clear about the need for there to at least be sworn testimony from witnesses it's i said at outset they demonstrate the rule of the six and seven hundred forty six of the judicial code the requirements of an affidavit in a declaration mr wagoner never furnished that you know i think there's something important about the requirement of swearing an oath and mr wagoner there's also indications in the record that mr wagoner said things to ms paralysis that were supportive of  charters position in the case so i don't think you can they did that with respect to lenient c as to the admission of evidence that getting around the oath requirement would suffice and i don't think that's what the cases are really focusing on they're talking more about things like lowering the hearsay rule because we know you'll be able to bring in the person who will be able to testify so even in this to wagner had set up a trial or the judge had a reason to believe mr wagner would be physically present at trial to testify himself that still wouldn't do it i don't think so i think then then you get mr wagoner to raise his hand effectively in writing and say that he is is going to do it and we've cited cases not within the circuit i concede and page forty of our brief that say that this is a requirement that one has to follow and then again i as i said before i don't think mr wagoner is if we if we accept everything  think focuses entirely on the east on the oral statement he made to ms paralysis on the telephone on april twenty third with respect to that statement it is not enough to simply say that i am going to complain that i think i have been mistreated i don't it is also not even enough to suggest i think that you know this somehow has legal implications if you look for example at this court's decision in the crown seller back case it talks about the deed to connect up the statement to the elect illegality that you're going to be complaining about and that's important because the statute wants to encourage employers to make an investigation the employer is entitle to some rudimentary knowledge about what the claim is it's retaliation for x or height sizing the protected right which means there has to be a clear exercise of the affirmative right two days after he had that conversation he filed his nevada board claim why didn't he ever share it with anyone why didn't he make any sort of disclosure about all of this so so i do think and also it's it's also clear here that the decision that was  to discharge him was set in motion before the conversation on april twenty third even occurred because the purpose of mr kraus was call was to tell him that she was going to recommend a corrective action which is the guy nothing happened to him mr wagner submits an unsworn statement and a question i thought judge rosenthal was asking and i'm not sure he answered is this given mr and the judge the judge excludes that part of mr walker's declaration as hearsay doesn't mr wagner's unsworn statement give sufficient reason to believe that mr wagoner would be available to testify at trial about what's in his  would happen yes mr walker has a declaration he says mr wagner was also on the call he spoke disrespectfully nothing happened to him he could testify to that effect that may be hearsay maybe not but mr wagner he then has just a statement from mr wagner that that i was on the call and here is what happened whether or not it's good or bad that can't be admitted we agree but doesn't that give us sufficient reason to think that mr walker could produce nothing about what you are citing which says that mr wagoner has any willingness or ability or inclination he resigned remember to come to to ever come to testify and even notice also again nearly everyone who gave an unsworn statement on june twenty five they were replaced with sworn statements except mr wagoner i don't i think we were we would just be engaging in this in total speculation to think that there's anything you could draw from this which would suggest that mr wagoner would come and testify and i also think then we have to inject the standard of review and see what is mr waxman come the district judge's decision so what does mr walker have to present to the district judge to make a sufficient case that not i'm not sure but can't may i answer it this way what he could do is go depose mr wagner so i understood him could do is he could go get a declaration like he did from everybody else so this is why we have a rule we have a rule that says  hearsay objection to information proof submitted by the opponent of a motion for summary judgment isn't enough you know it's not enough that is just hearsay if the guy can produce secondly the hypothetical you gave me has no plus factor in it which suggests he would come to trial or testify you know it's just that he he wrote this letter and somehow therefore we should assume  he would testify about those things and i don't think that ought to be enough it's quite different for example then what the judge did with respect to these notes the that in the ethics point the four things i want to address very quickly through them i can dispose of quite rapidly chancer judge rosenfels question i think the ninth circuit cases that help me the most are nanti which is nine hundred eighty one case which was i have to admit subsequently overruled on a different ground and noir as a two thousand and seven case i think those two cases really stand clearly for the proposition that subjective criteria is very suspect and when the employer's explanations lack credence when it seems there's deceitful and then you can have summary judgment so back to the second question what is the minimum your client would have had to do to get the district judge to say there's a reasonable likelihood that these witnesses who are whose statements are only presented in inadmissible form now will show up at trial making their testimony admissible i think he has to have been anything more than he already did as judge her wits noted in the and to opposing counsel he didn't just submitted hearsay statements and i think i know somebody who might say this when he shows up at trial he actually submitted what he attempted to be a declaration a sworn declaration setting forth that information but it wasn't it wasn't sworn that's true so what do we do with what our standard of review and by the way i'm not sure the judge went through this thought process the judge you said hearsay but let's assume the judge said said wow i know the ninth circuit says this stuff can come in sometimes but i'm not really shown this guy is going to show up at trial how would we review that if we were just that i'd say would be a difficult thing and you'd have to decide i a legal question i suppose and so that would be under these circumstances so but i so want you to know we say to the judge you should have just excluded it is hearsay you should have gone through this second stage analysis and you didn't and we're not going to do it in the first instance i think when i clerked here the strong inclination was not to say more than you had to and so i think you don't have to say anything more than well judge jones you know you employ you impose this rule on mr walker but you let the other side out he let them submit evidence that would have been hearsay and you considered it anyhow so you have to be balanced if you can do it one way you have to do it the other way in this case their mind what the standards are for going to do it for one you've got to do it for the other and that's the quickest easiest way to say that was an abuse of discretion and you can't do that and therefore summary judgment was inappropriate and he's not going to redo the summary judgment we're going to go to trial that it's not like he's going to have to say right now i'm going to have to figure out should have let this enter not you should have because you did it for the other side i said  sanderson sorry about that that's history remarks case pretty much sorry that's most famous as a stray remarks case most famous for that yes but it also has a lot of language in there about how it's not a very tough standard for the plaintiff to show a tribal issue of fact it's a matter defense you know i have to tell you even as a defense counsel i love it because it seems that has such a simple appeal but it's intellectually dishonest the same actor defense if i were a chauvinist employer and i hired a woman who i thought was going to conform to gender stereotypes and then it turned out that she was outspoken and she didn't just defer to me and then i fired her for that can you really say that i didn't fire her for discriminatory reason of course not should i be able to avoid liability for that simply because i hired her because i thought i could push her around it is an inference that jurors can draw the idea that summary judgment can be based on the same actor inference all reasonable inferences need to be drawn in favor the nonmoving party it's wrong to use that it's in the judgment  saying that even his defense counsel last thing you know you can prove primary you can produce combination with through mcdonnell douglas shifting burdens are three direct evidence of discrimination opposing counsel's argument as i understand it basically says you can never have an employee say i didn't do what they said i did and avoid summary judgment unless he has direct evidence he or she has direct evidence of discrimination that's not the case that's why we have either or you have both if you don't have direct evidence of discrimination where somebody says something racially offensive then you have the shifting burdens and the fourth element of the mcdonald of this test is either similarly situated employees were treated differently or there's other evidence and here we have other evidence the employer was deceitful about its reasons for terminate his employment that alone raises the inference of discrimination you've overstayed your time but now you're welcome so