the defamation claim based upon the statement by mr ed holt that plaintiff and ms smith have both experienced the same dinners and breakfasts so they're saying meals because that's the simplest claim  then i'd like to turn to the various discrimination turnings placed on sex national origin and race where i want to focus on the evidence of discriminatory anim in the record as opposed to the creek rather in particular as opposed to pretext and then i'd like to return to the defamation claim based upon the statement made in reference to  plaintiff that again by mr x called quote this is clear expense report fortification in that second defamation claim i hope to focus the court's attention on the evidence regarding a pattern mr laurence's that determined that there were in fact no duplicate charges for the same meal although there were multiple meals charged on the same day and some of those meals were missed coded so that there may be more than one lunch charged mr lawrence's a determined by looking at the individual receipts that indeed there were no duplicate charges by plaintiff in miss smith and most significantly as to the abuse of the privilege as it relates to that statement the evidence is here are one thirty nine in lawrence's deposition testimony that mr lawrence told mr acard of that result mr lawrence stated in his deposition thirty didn't find he checked duplicate receipts and didn't find any an attack so as to the first defamation claim there is no evidence in the record to establish that there was no reasonable grounds to believe the truth of the statement mr eckert made the plaintiff and mr smith had experienced duplicate meals now again that's the simplest one i think that's real straightforward i'd like to move to the discrimination cases because i think those cases are time i had in with the second defamation claim where eckert tol guarding what type of comments by the decision maker are sufficient evidence discriminatory animists such that in a discrimination case summary judgment should be tonight and the standard in both those cases goes to whether somebody in authority made comments that demonstrated the court found that the supervisor who had mocked the warehouseman accent and pretended not to understand the hispanic when he expressed tried to explain  survive summary judgment in part because it's a decision maker in part because of the proximity to the decision but no it wasn't necessarily involved with th decision and if we look at the evidence in this record there is several more thoughtful examples of discriminatory hold regarding the march meeting in germany let me get the excerpts of the trial court in the defense make a great deal of all the complaints going back to two thousand the trial court and of trance try to negate the positive performance review the february presentation where my client didn't have the person show up with the powerpoint presentation and sort of had absolutely of her presentation and admitted that she didn't do a very good job they try to make a big point that that february comes after the evaluation so there are these additional factors well i point i draw the court's attention to page one eighteen in the excerpt of the record in page one eighteen is  page seventeen mr cole says we decided that we wanted to keep her in that department it he goes on we wanted to make sure she stayed there because she had some experience with the department she knew pretty well about the  americas international and she had a good understanding and we definitely didn't want to replace or now that's as of march your honor and that's after the february incidence it's after any post complaints following the december evaluation and it's only three and a half weeks before she's alternately terminated and the testimony is that the only thing that happens next regarding her her employment for m well the e mail than i that i believe is in the record that i believe you're referring to is a distemper e mail from mr bennett that both the court and defendant in accurately characterized as a warning mr bennett doesn't characterize it as a warning in the e mail doesn't stage it's a warning and significantly the e mail does not refer to expense report personal rather personal expense report errors there are discussions in the past  about total expenditures there are discussions about the expense of certain samples but the e mails and discussions that client my client had with various members of management was not about personal expense reports and that's one of the errors that's one of the basis is to refute that jumping a little ahead to the defamation claim is that there is no pattern of falsified cation there february presentation being a factor as to poor performance mccluskey states the february presentation was not a factor in the determination so between mclusky statement and the statement by that as of march they definitely wanted to keep her in her position as to the very minimal standard required to the prime of face to case there is evidence here that she was satisfactorily performing her performance to the time of the issue of the false occasion of the expense reports that issue takes this to well i will not repeat all the evidence of discriminatory animus but i think it's important to draw the court's attention to it it's set out on pages twenty four to twenty four twenty two twenty four of the opening brief excuse me it has said it has evidence  regarding different treatment of german nationals it has evidence favoring german males it has evidence of a lack of support for american female managers compared to german male managers standards as to that evidence of discriminatory animist there are statements that regarding the us design team in general designs crap statements that you americans have such bad taste statements referring to plaintiff's jewish princess that goes both to race and sex as well as referring to plaintiff as princess those comments are repeated a number of times over twenty times all of those the importance of that is that this court sometimes based on the godwin standard get confused as to what used to be considered direct evidence and circumstantial evidence and if you have a little direct evidence that's enough but if you only have circumstantial evidence you need it it needs to be substantial i think the ninth circuit has recognized the supreme court has done and it has made it clear that there shouldn't be that distinction the defense side of that case to you there shouldn't be a distinction between direct evidence  circumstantial evidence in the case that the defense cited to you as supplemental authority makes it clear that there that distinction shouldn't exist but it continues to impose the substantial evidence scheinberg goes to cult shortly before she's terminated and complains about not being treated fairly by me because america he had been there since the previous march and so certainly for that year period there had been the differential treatment the favoritism toward the german  male who ultimately was hired not hired but promoted to replace mr scheinberg in the same email in which mister made the decision to terminate or he certainly not for summary judgment your honor i think that goes to the weight of the accusation and that she wasn't in the face of discipline it's key to understand there was no warning the email addresses issues there was never never she has been talked to about the need to be more careful there are e mails regarding that issue and and we believe that summary judgment those are accurately characterized as coaching not a warning there is never any warning subsequent just a play and should she continue in the manner she had coaching goes on all the time in a summary judgment were entitled to one of the two reasonable inferences that it was coaching as opposed to a second inference that they should be allowed to argue to the jury that it was a warning but she was she was not there is no evidence that she was raising the issue of discrimination tied to any particular counseling and if there were it's summary judgment that goes to the weight of the whether it's sufficient or i have two minutes performance is inadequate that there's a whole long litany in our grief of things that were happening over the course of a year and a half where things were building up where americans american women a whole array of people in these organization  questioning the plaintiff's expenses were questioning the plaintiffs her travel were questioning that that the sample she was buying were questioning her favoritism there's a period of time that we lay out on our brief relatively early on where several of her employees what they did they negotiated severance packages for them because they couldn't work with her she was having thinks she was she was i mean it's fair to say your first question i think is a good match fair to say that she was not a good manager she was a bad manager she did not do a good job she was not meeting the legitimate expectations of the employer virtually from the beginning early on she got some reasonable reviews but if you look at the chronology that we lay out on our brief you will see that over time her performance was was very poor when she got the evaluation in the event for a one if you look at that evaluation you see what she got she did not  get evaluation the state to want to scale six to say fair it's not if you look at that scale it's not an example of meeting employment expectations it's an example if you look at if you look at what the scale says it indicates that she was not meeting saying if i make characterized you're a manager and you're pushing the outside of the envelope with these expense reports and you're not testing receipts and you're not doing what you need to do and that's not the way a manager operates now you can call that a warning which i think then have the trip they take that you have the expense accounts submitted now notice what happens with those expense accounts this is not mr mccall skier mr eko older somebody jumping all over those those those expense reports that were submitted for the new york and los angeles trip this was glen bennett's assistant who's an american woman who looked at the expenses and said this doesn't seem right and she went out and did her own independent investigation and she's the one that figured out inconceivable to say that on the day i decided to terminate her she was meeting at a distance legitimate expectations and the only thing that counsel raises is the comments by eckl in march but i think that what that says is there is nothing in what mr ecclestone in march to indicate that he thought she was meeting legitimate expectations very thing of that statement is sure we want we want to keep people in a position like this where we can help  t we're not we bend over backwards we don't want to try to replace someone in a position like this if we can help it but mr reynolds certainly in march did nicely and anything to indicate that it's part of the plane it was a good employee just that they create similar situated people outside of the class differently and you don't have any evidence of that either there's no evidence for instance of treatment of other managers there is no evidence that similarly situated german an exhibit which is that you are two twenty two in the record and i exhibit basically shows of what was going on as they were both expensing two breakfasts each day and they were both expensing two lunches each day ok so it was not that they were turning in duplicate receipts for the same meals but they were both expensing breakfast twice essentially we talk about that in our brief and i think you can see it most effectively if you are two twenty two it's also the results of the audit and i just talk about what happened during the new york city and the los angeles trip the results of the argo all the way back to august ninth of over one and you can go right down the line and see that  eleven cindy anthony's shoes different change rates for lodging the point to try to make as i won't go into great detail but you have to look at what mr eccles sought here and i would submit to you that any reasonable person who looked at this saying that she was charging him workout fees when she was buying cosmetics that anyone had a reasonable belief to believe that she was had a reasonable basis to believe that she was falsif counsel referencing who he said if this is kind of confusing they are not both turning in an expense report for a meal at denny's for the same meal ok what they're doing is they're each turning in and ok i'll be given day and that's what's basically going on and that's the thing that i think it's best illustrated when you look at the r two twenty two i think it's also really helpful to look at the expense report itself the expense report that was turned in and i don't have i don't know that have that in front of me but we certainly cited it in our briefs and you know it's not a long detailed expense report with the hundred items that in all likelihood the plaintiff would have overlooked when she tried to make it easy for her cosmetics or when she tried to expense a jaguar can't get inconsistent with the policy it's a relatively short expense report it's got about six items on it and the plaintiffs say she reviewed it and she certainly signed it and provides more of her signature is directly next to this entry that says that she's you know they were she expenses gym workout fees when in fact their expense reports she had nixed when in fact they are cosmetics so you have to remember that that when mr ethical was standing there and saying that she didn't get an expense report false vacation he knew that glenn bennett in december of zero one had told her that by gosh she better be real careful with their expense reports if you're a manager you have to be responsible you have to set a standard and he knew that she had reviewed and signed this form and then he knew that many many times there were irregularities in what was going on i think it's difficult to make any reasonable argument that he did not have a genuine genuine belief in the truth of what he said international inc and i wanted to just bring it to your attention because it goes to the issue of what the plaintiff is required to prove when overcoming a privilege in a context like this and you'll find show that the defendants lacked a reasonable belief in the truth of their statements plant had to offer evidence proving the question of fact as to the mental state so the defendants at the time they made the statement there is no evidence in the record replace the plaintiff with a man named hottest ever and then the echols knew the mccoskey wanted to do that and therefore echols had some motivation to do it to falsify the expense reports but there's no evidence for any of that i think it's name of the case does not change the general rule of the ninth circuit which straight remarks there has to be proximity in that case the remarks the court made a point of pointing out that they that the that the  comments that that were made the racial comments that were made were made within a month or two or two of the hiring decision in this case there is absolutely no evidence as to when  even just wait should be determined but that's just that's just talk a lot and in the ninth circuit when you're when you're at the summary judgment stage and you're trying to rely on circumstantial evidence as evidence a pretext it has to be substantial evidence it's not a matter of weight when you get to the jury you see every member cost is a case of a jury instruction and they're talking about what you tell the jury about circumstantial evidence versus direct in a circle and when you get to a jury i think it's fair to say ok you give the jury the evidence and let the jury occurred it's more complaining i think it's a fair characterization i think that's the way the district court look at it and that's why i think if you look at the evidence what you'll see is just generally grousing saying well he's not decent he's nicer to other people you know germans than he is to me it's not specific enough that i read you the language from in which they decided they wanted to keep her they definitely wanted to keep her they decided to develop a work improvement plan and three and a half weeks later she's terminated and  this what has changed in that three and a half weeks why not follow normal procedure and ask her what happened correct a common mistake that happened in ten percent of the expense reports according were ten percent errors five percent had missed codings why not follow the practice that was followed according to not tells testimony according to plaintiff's testimony and according the huckster's testimony the practice was to talk to the individual and find out what happened the reason that summary judgment the reason that they didn't follow that practice and leap to the conclusion to terminate her after instead of putting her on the work improvement plan guarding germans and they also attach were vague and ambiguous there is nothing vague about naive girl the phrase be used in the december evaluation for months only four months before the termination there is nothing very speculative about jewish princess used over twenty times as well as princess di all their conduct in addition to those comments shows evidence of discrimina