the morning may please the court and john williams on behalf of the appellant i'm going to reserve five minutes of my time for rebuttal or at least try to do so i'd like to use my time this morning to put a finer point on a few key issues in this case and i'd like to start with the plaintiff's discrimination claims and then i'll speak about the retaliation claim after that plaintiffs raised direct evidence of this criminal discriminatory intent by forever in this case under this course authority in the twang case this court previously held that very little direct evidence of discriminatory intent is needed to defeat summary judgment here all three plaintiffs brought that evidence forward with respect again solace during his first ride along with going solace for air stated that he needed to fire female employees before they became pregnant at their next ride along for air told gonzales that he had a firing time line to make sure that those female employees were fired before they became pregnant and ask him solace herself why she never had kids or if she planned to become pregnant as the boy did after reassigning to a boy's accounts to a new male salesperson for informed boyd that he believed a male sales representative would better serve the old boys network in those key accounts he criticized her presentation skills as being too motherly and he told her to keep her presentations simple and use in our analogies that you're comfortable with like baking a cake with respect to colombo freyr would always and that was a direct quote ask colombo if she was pregnant again when she planned on having another child and paraded her for giving away her baby clothes in an incident that underscored his concern with her being becoming pregnant again all of those comments demonstrate direct evidence of discriminatory animus towards all three plaintiffs now there's been some argument that these are just mere stray remarks and i think we brief this in both our opening brief in our reply but the read the google case the california supreme court case did a thorough analysis of the street remark doctrine and looked at those for a look at its origins and reach the conclusion that it's a jury that should judge the probative value of those remarks that they should be admitted in heard by a jury and that's really why we're here today it's our position that all of that evidence should be before a jury and that these three plain and who suffered this discriminatory conduct in comments by their direct supervisor should be viewed in the aggregate one of the primary errors that we could glean from the district courts analysis was that the district court tended to pull these three plaintiffs apart and not see this is a continuum of conduct even though they suffered all of the same conduct directed from the same supervisor and i'd also mention in addition to reed's position with respect to the stray remarks this of connecting the dots between these three women and their treatment by their same supervisor is is actually relevant and should be heard by the fact finder if that evidence can demonstrate discriminatory intent even if that made between what is actually asked in a deposition whether the question what the call of the questions were and what whether the affidavit itself is contrary to that or whether it's a lab or it's on a point or whether  it adds to a point that was announced so i guess my response in this situation is that there is no clear conflict that would require the court to disregard the affidavit and that the issue of what she what she heard what she knew about would be a question of fact for the jury and that it it doesn't rise to that level of a clear conflict thank you i did want to mention some of the substantial evidence with respect  to performance spreadsheets but i have another question and you haven't touched on this yet suppose we find that the evidence against mr fur is sufficient to i don't think so your honor and we discussed this be because of the caspar theory imputes liability to the company based upon what frazier did in this case to it it shouldn't be overlooked that all of the folks who were on the decision making team who put together these spreadsheets which again contain the erroneous information asked all three plaintiffs all of these decision makers this ween with compliance stanley aston who was the director of commercial operations in the western area miss some aha head of human resources ms howard all of these folks were aware of the plans complain so they weren't isolated from them when they made the decisions that they did by placing these folks on the spreadsheet for these lay out the solutions and again used rony as calculations to qualify them for a layoff in the spreadsheet so i would my answer to you would be that the decision makers were not amusing from what for did they knew about it they supposedly investigated it although we know howard's investigation was woefully  made by the plaintiffs against for they did not follow their own protocols in investigating those complaints and moreover this court's decision in poland in addition to th state court of appeal how do you follow the protocol for example howard who investigated the complaints on behalf of the human resources who reported to somalia who was on the  team that made these terminations decisions she never followed up with any of the other employees or for c never called colombo so mom i'm sorry howard howard and it was only when colombo called her that she got any information and then she was required to produce documentation of that investigation and no documentation was ever produced she was required to give a written report of her investigation the level of investigation and also the lack of documentation on that investigation and poland yes and so alternatively in poland and in reeves both this court in the state  on lease board in colombo on o s p's which were plans for remedial action that make them targets for later terminations then they cast part theory discriminatory animists towards the ultimate the decision makers i've already detailed in this case have the decision makers in this case were aware of these complaints but even absent that it's our position to cast paul theory under both polunin reeves would reach that decision making team and so when you talk about the cat's paw theory you're talking about the decision makers being influenced by farrar being influenced but also by prayer putting in motion by his original discriminatory acts that would make these three plaintiffs be subject to further scrutiny for you're supposed to have a discussion with these folks about taking corrective action the record evidence here is that when fair did this with boyd and when frere did this with  colomba as well that he was not available to them that he didn't have any discussions with them about how to correct any of the issues that supposedly supported the o s p's he didn't create any documentation as the company protocol required to demonstrate why they were put on a list piece in the first place so here he is raising their profile for further disciplinary action out of what out of his discriminatory animus because  women and then they alternately get included in spreadsheets for a layoff based upon a rony as criteria information which is disputed and which the spreadsheets themselves are inconsistent with their performance reports from relevant periods right before the termination occurred yes thank you it's hard to imagine more compelling direct evidence of retaliatory animists than a threat by that the c e o telling us all as if she should quit her complaint that if she did not quit or detente that the company was happy to lawyer up in the fact that the company then brought in an outside lawyer to be part of that terminations team where gonzales was targeted for termination is direct evidence o discriminatory intent under this case this court's prior case and versioning i'm happy to talk about the circumstantial evidence the temporal aspect how can solace was a high performing salesperson fifth out of one hundred sixty in the prior year never had a negative report never had and negative review intil what intil she reports for air and then all the sudden she's a target for picayune compliance violations the fact that she had worked for eight years without any issues and then within four months is terminated after she reported is compelling circumstantial evidence of discriminatory anim under this court's just i'm sorry under that california court decision inflate so there are many travel issues here even with respect to these compliance violations in salis was given mere hours to review this compliance warning letter before she had to respond to it in a conference call she disputed it she continues to dispute the factual basis upon which those compliance violations then the three of them have with regard to discrimination i don't know if i can make that qualitative assessment i think there's direct to set i think there's direct evidence in this record of both discriminatory and of retaliatory animus the distinction i think perhaps your honor is making is that the direct evidence with respect to retaliate in comes from above with respect to the evidence of discriminatory animus it came from both below and above and so i think that that's for a jury to determine intermediary about and below you mean subordinates and regiment ok correct with that i'll reserve the balance of my time thank you please the court joke not on behalf of organic genesis i originally had some prepared statements by thinking about audible if that's ok and just hit some of the issues that mr williams raise because i suspect even though i  refers to direct evidence and that's not an insignificant distinction as mr williams realizes because if there's direct evidence then it's easy to get past the summary judgment burden and get to direct evidence of venomous that's right and that's your honour's going exactly where i'm going now but if it's a circumstantial evidence case then plaintiffs would need to show specific and substantial  close because the only evidence of direct evidence of retaliatory motive as mr williams just explained is that apparently mr mckay said something about you know stop or you will get lawyers or something like that two issues are really important here number one there is no evidence that mr mckay had any role in the decision right there's no admissible evidence there's no specific substantial evidence there's no evidence at all that the c e o said get rid of her or i don't like this i want you to you know push zero so what you have is this this one comment allegedly that he made but it has no the actual decision here and if but even if you look at the comment it's not even particularly in the ferias i mean i guess it's tempting and it's easy for us as lawyers to pitch things and make them look mean but if you look at it the c e o is saying if everything is believed you can telling the employer you can either escalate this which surely doesn't seem like someone who wanted to avoid a dispute would say or we can stop which is why i think detente means well sort of just let things they where they are or we can get lawyers i don't think that is the type of evidence that anyone could conclude that there is this evil motive out there so even if you assume it was said i'm not sure that it shows what the what the argument is trying to show that it shows and he wasn't involved in the decision so it really doesn't matter but i guess turning back then to direct evidence why is that important well direct evidence is that kind of evidence that you don't have to show anything else for it to be enough right you don't need inference no additional evidence no nothing and that evidence isn't here in this case either on the discrimination side or on this retaliation case so and how do we know that the plaintiffs admitted it below so if we look in the record during the summary judgment i think it's and pages six fifty five of the record they admit this is a circumstantial evidence case and that's why this issue of direct evidence is a very smart way to try to avoid the substantial evidence issue that they have in terms of the overall evidence and what they need to show in order to beat summary judgment the second issue this is this cat's paw which i think is it's interesting and i think it is another way to avoid when there isn't enough evidence to actually show that the decision makers relied upon the wrong stuff we make some argument well they must be an instrumentality of someone else you know that's based on our case in poland which i think was in two thousand and seven written by judge gold where we held that if a subordinate in response to plaintiff's protective activity sets in motion a proceeding by an independent decision maker that leads to an in the decision or decision making process and so here we have the fact that for a rare initiated these investigations and employment type same sions that set started the chain of events that ended up with these three women being terminated and having yet adverse employment actions so i appellant's have relied on poland so heavily because i think poland proves why summary judgment had to be granted so what polling specifically also stands for is the fact that somebody rolls out the reason that starts sort of a chain of events that's not enough you can't and if it isn't it enough to get over the summer job he's not done enough to get over some roger in holloway is talking about what has to be proved alternately to prevail on by instigated it and he was involved with with them after having said very questionable statements of three women when they had to ride along with him on its trips you are one hundred percent on most of that your honor that let's assume for purposes of our analysis that he said everything that's alleged and i will concede that it is it's awful  and that type of evidence could be really important in a different type of case but here it's not because he didn't make the terminations decision and poland i think stands for the really important point that number one you can't just who if somebody starts this process it's not fruit of the poisonous tree it's not just because the beginning of it was started by this bad person with this bad intent later events somehow understand your honest point but i respectfully disagree that this is exactly why we have the summary judgment process where you need the specific substantial evidence that what you can't show is that bad person a star the ball rolling and then events happen later what polling says is the person who starts it isn't enough but you have to show that that bad actor was pervasively influencing whatever happens right take a look at further investigated and evaluated next week when sanger is in california and will meet with oscar and then do a ride along with andrea on thursday so that's a one of the team say we are considering of course what herrera said right yes and no i think your honor if and i am not going to go back and look at this in detail right now and waste the court's time but i think what it also says right after that is why we need to do an independent review of this ourselves and we can't begin the word independent dozens appear in her e mail that says investigate right right right and then counsel don't we have to look at the evidence in the light most favorable to the nonmoving party absolutely and draw those reasonable and logical conclusions  in the retaliation claim there's a complaint there's an adverse action and then the third element is simply that you can show some connection between the two that's when that's all you have to show you have to show  connection that would be reasonable enough for a thoughtful fact finder to conclude that retaliation was the real reason so it's not binary but and then if you look at the evidence in the light most favorable to the nonmoving party that is the point then if there's any questions of fact you have to deny summer jobs of course that that's absolutely the structure but it and see i almost get the impression that you want us to look at the evidence in the light that this is holistic right and in a way it is but when we look at it in a holistic way it's not is there a speck of sand in the water it is it is more w monday stu type argument where ok we take whatever's left over from the week and we throw in the studio and hopefully at the end of the day it tastes good enough and then there must be something in there that's not what this is what we need to do in these cases is look who was the decision maker what did the decision maker decide and who was involved in that who who were who was motivating that and here all we know is the bad guy wasn't involved people so i think it is it is tempting to say well he started it or he did this and they relied on but when we look at the evidence in more detail it's not it's not really when this program let me ask you this did you prior to farrar ever reported anybody for compliance violations i don't believe there is any record of that also she was the first one we don't know we don't know if she's one of the record does he's made that the record doesn't show anyone else what the record also doesn't show your honor are what we would typically see is other people who did similar compliance violations but who didn't get drawn right in a case like this what we would normally see something like that or maybe changing reasons for the terminations we don't see that either we don't see statistics or all of the markers that one would typically use to show that this decision was retaliatory  we don't have any of that we have a regularity and investigation and temporal proximity which are also factors that we supposed to consider and that's a great point on those investigatory irregularities assuming those happened those are four or five months earlier and if one really looks at the record there is extensive evidence of what the h r people did but assume it's true right assume that they didn't do a great job investigating this none of that has anything to do with what ultimately happened with the terminations later on it's it entirely separate i suspect that if one looks at any of these certain circumstances you can always find someone who didn't do a job as great as they would have liked to or there are mistakes in a spreadsheet but the issue is is there evidence from which a reasonable person could conclude that the real reason is because you know the company doesn't like women and i respectfully suggest there is not evidence of that in the court below appropriately ruled on i to it is there anything else i can answer before i set your hours thank you very much counselor i'll give you a minute your over your time if you don't judge strain you ask the question prior he said things to get solace that made her feel like she was valued and then when she makes this report all of a sudden these compliance issues come up you know i have to say there's a little bit of false contrition here i know that the defendants want to separate the team that terminated these folks from for air but we have to remember for rare was reprimanded by the company and told to go to extent there is an effort here to create the separation there was a lot of things that the company did they didn't take appropriate action with respect to for error when they knew it and those people were on the decision making panel that ultimately made these decisions about the plaintiffs there's a