your honour's me please the court my name is dow patent i represent carmen cortez was also president for today this appeal presents that the question of what is the requisite quantum approve of circumstantial evidence only in a title seven and race discrimination case based upon performance and  particular only to the question of pretext it's not the the question of the prima fashion case was resolved by the district court alone is not at issue in this appeal the real question for the court here is what is that quantum of proof in the context of the public sector for cause only context also in the context of a collective bargaining agreement and what can and i district courts basically said look we gave you gave us all this evidence about a compared to a similar person but it was just you just dumped it on me yes ron right  point on the county you're a lawyer right absolutely you're on i'm not blaming the caring i went through in my declaration and i and i added those up and i presented that information in my declaration and we also didn't make any sense heat i couldn't make any sense of ethnic differences there are plenty of us bannock me i thought that she was saying she was discriminated against because she was hispanic that's correct trying to she was the only hispanic so long that filipinos were hispanics know they're not hispanics they have spanish sounding names but they don't speak spanish that's why they're not hispanic your honor the very one question the gala i'm sorry everyone speaks to galaad no  context of being for cause etc is what you're saying is that gallagher filipino speakers discriminated against a hispanic and we're supposed to be able to see that from those spreadsheet from the declarations that quantifiable performance metric of audit is completed now there may be some detail in there of class one class to class three set those aside for a moment what we've done in in our briefing is to go through and show how that data presented to the trial to the district court and in in the declarations and attached in the declarations is that those numbers represent failures massive repeated failures by non hispanics to comply with deadlines set department was that was there anyone  who was his unsuccessful in keeping up with the workload the court has absolutely around and we've identified those in our in our opening brief if we go through them one by one at each level of discipline and looking for the the  amount of audits at that time at the time that ms cortez was disciplined and the evidence is clear that in each sentence every time she was disciplined there's some there's at least one and often times more get to twenty six along with the declaration the last several pages of the declaration i did go through and they and they aggregate that data for the court and we presented that to the court at summary judgment  the for cause matters your honor because that's what creates documentation and in an at will scenario you don't have to document when you want to want to terminate somebody or you  have to have in your claim your claim here is not that they didn't have cause to terminate or under the county charter your claim here is that they engaged in racial discrimination absolutely right that's absolutely your claim and then your claim you have to do what you had to do or convince the the district court was that there was a genuine tribal issue a fact over pretext yes right that's all you had to do yet and you tried to do that with this data now the district court said if you just look at this data you don't do it but is that all the district court was required to look at no your honor the court was required to look at the context and  the context of more cause a court has to look at is best to fide and rule fifty six yes right and it would be nice if you just gave us a page number in the excerpt or something that shows that there's evidence of racial discrimination disciplined but not fired for falling behind on a rod it's as i recall as i recall she was disciplined multiple times and then finally when it didn't take she was fired that's correct and your honor we have identified it each level of discipline compared to yours who did exactly the same or worse than plaintiff than his cortez did and they were received no discipline and there is no documentarian record in the for cause system that would identify performance issue in a performance is not the issue then it must be race because the rest of the context matters your honor that the rest of the context matters the only hispanic no one ever of the only reasons anyone ever gets fired or bad performance or race not at all your honor but we have to look at the totality of the circumstances a stark racial disparity were filipinos comprise an order of magnitude more in the population of the auditors office than they do in the county of santa clara census where we have never before has any auditor appraiser been subjected to the type of write up an on favorable review never in the history of the department she's the absolute first and why let's go back to her one to one comparative for the person hired at the same time as her job week camp of the very beginning joint kimbo didn't complete ninety eight to nine audits by december did make much of an impression and that's because my review of it doesn't either i don't understand what it's supposed to prove your honor at the end of the last eight paragraphs of the declaration go through and upon review of exhibit i i have made the following calculations and i have identified those those calculations the individuals who performed and what their performance metrics were what their numbers work it is undisputed  spewed by the county those those numbers are undisputed by the county they have no explanation for them there is no explanation offered whatsoever why when this list of  of eight people who don't complete their audits by may thirtieth two thousand and eight which is a as a department wide sander why that doesn't result in a single discipline indeed there's no discipline ever until to raise a tribal issue a fact that the proffered reason which was poor performance was just a pretext for the true reason which is they wanted to get rid of her because she wasn't filipino that is correct your honor and more and more to the point the substantial and specific evidence required that the circuit law is very clear you can't rely just on your previous fashion case but at the same time offering all of our evidence at the same time i'm not you parsing shall i say you to look at all you look at whatever you offered for prime aphasia and you add it all together and you look to see whether you've created it raised a genuine tribal issue and that and in particular in the four cars arena it's it and discrimination and discipline it's necessary to marshal all that evidence of once and say whether it's meets the prima fashion case or it's casting doubt that performance is an issue if performance was an issue of completing the audit's by may thirtieth was an issue the four cause system would have a record of that were there ever any i don't recall any evidence of people making remarks anti puerto rican remarks or for she was responsible for twenty eight audit in two thousand and five and completed twenty seven but the county says that she was originally assigned forty two wat it and all those excess audits over the twenty eight that she said she was responsible for had to be reassigned to other people and then in two thousand and nine ten she says she was assigned five on it's but her boss testified that she was assigned thirty four audits and he had to reassign money to businesses that she daughter did in correctly so it sounds like they've got lots of on contradicted performance data and i didn't see where you showed that anyone else's performance was that bad clearly in a tabular format in a reply brief which shows the people when they win may thirtieth rolled around or many of those with what i want me to do is just analyze a smoky room like this myself and figure out who's puerto rican and who says spanish and how many audit's they got assigned this year shows that autobiography you want me to do the math no your honor and and after guessing about their ethnicity absolutely not your honor that evidence is  contradicted she was the only hispanic so everybody by definition that's not me named cortez in there is is a comparative or outside of her protected class so there's no guessing involved the pattern declaration went through and tallied various aspects about those those aspects have been tallied both in our opening brief as well showing that after the time she was receiving the discipline there were others that did exactly the same thing or worse and had no record of discipline whatsoever and i'm about out of time but we took tabular information and tried to make it into a narrative information and now i've taken narrative information and put it back in tabular format you say it's the same information and the just a good morning your honour's david rolo appearing for the county of santa clara we're here today because plaintiff in the underlying district court did not submit specific and substantial evidence to the district wasn't like it wasn't like he just said you know opposition to summary judgment i rely on everything it's in the record i think you brought the data to the district court the rule requires a pinpoint citation to the evidence in the record well that's in evidence in the record no bulk of references to a staff and he had the underlying data with the declaration now admittedly it was a little bit confusing but the underlying data is there you've supplied the underlying data right i can talk about i know did you supply the underlying data or not we did you did you took it from your own record you you stripped it of information and you gave it to him correct and he used it to the extent he could to the extent that he used it yes the patent declaration that was referred to earlier specifically references non similarly situated senior auditor appraiser's half of the declaration refers to other appraisers you know you different job functions to the point  argue that no one was similarly situated because of the way to rio did these individualized work plans so she put everybody at different standards in this kind of being a low arbitrary about  respect to that in fertik with the two thousand and nine two thousand and ten fiscal year the evidence is the appellant chose not to abide by the work plan or supervisor suggested she drove up her own work plan and even then was not able to complete a single audit by may of the fiscal year so her as i understand the theory of her case it's that yeah there were these work plans but i got singled out for punishment because i was not filipino or asian i was hispanic or you can characterize it as she was set up to fail for that reason and private sector experience the suggestion in the appellant's brief that she didn't get her board certification until after her first year of work is misleading the complaint in the case references the fact that that's a perfunctory requirement by the state did you get a lot better after the first year of work and she got worse by the time the last fiscal year was involved leading up to the termination notice she was assigned and this was not referred to in the reply brief her reply brief ignore this fact as you pointed out she was assigned thirty four audits for the fiscal year two thousand and nine two thousand and ten percent a work plan she drew up she did not complete a single audit thirty of those audits had to be reassigned to other our daughters who had comparable levels of work to begin with her performance by the time of the last  incentive for the disciplines in the first place or some kind of health problem that was documented in the record i don't remember anything she took leaves on various occasions in in the fiscal year of  believe it was two thousand and seven two thousand and eight her audits were reduced she was only assigned twenty audits for that fiscal year compared to the office average of thirty six or thirty seven and how many did she get she still had problems completing her audience in a timely fashion the issue in this case was she did not submit her audit's in a timely fashion throughout the fiscal year sufficient to allow could you take a look for me at this patent declaration i have trouble making sense of it because it seems to depend a lot on knowing who everybody is and i don't know who anybody is and you said it doesn't count because some of these people are at a higher level where they get fewer but heart harder audit's i think that's what you meant sure but i can't see that in the declaration and i don't know what the declaration right this is what does this mean well i'm not sure what it means it's not in the declaration that there are more senior auditors that line twenty six you see that he says however thirty six of the forty auditors in the office completed their audits in the month of june two thousand and six in fact five senior audit auditors completed nearly half of the remaining audits in the month of june two thousand and six including and then names five people i don't understand what the significance of that is it's significant from my perspective because getting a verbal warning or something for missing the deadline she was and so she was being penalized for missing that deadline and some of the others and listen to a people were that's almost all the others she is not hence of the auditors she is not disciplined if you look at the dates of the discipline you palin is not disciplined for having on its remaining in june she's and giving her more work when she's not being able to keep that doesn't seem to be able is it really going to help her hear her problem well the record in the case suggest she was given less work she had auditor reassigned she had work taken away from the other people right by me as did other people no there is no evidence of that in the record i read that center where she was the only art or appraiser in the office that had on its remove during the course of a fiscal year so that the completion date could be reached so that what bothers me about the district court judge's ruling is that i think he basically found facts which you're not supposed to do and s says he says it must statistics must show a stark pattern of discrimination unexplainable on grounds other than race they weren't really using it just for that here but he says this the statistical evidence presented here fails to meet that standard because dismissing no i think what he's doing is he's following along the schechner decision which specified that statistics are ok to prove a crime aphasia case provided there's a stark pattern of discrimination set forth in those statistics but oh well they were relying on here flow basis at the time of her disappear arguing that this new car got these facts wrong what i'm saying is the record reflects the fact that she was the only orator appraiser that did not submit  the idea in the office was to get most of if not all of the artists completed by may so that there would not be a crunch of incomplete audits between may and june when the auditors had to submit by statu are expected to get it out by mayor if something's assigned to you in january or expected to get it out by march or what something is this it would be like the appeals in this court if the clerks have fifty appeals to handl opinion on by june the division the assessor's office expected that they would be seeing those opinions over time not all at once at the end of the fiscal year some of us write our own opinions if you have thirty six to thirty seven on it's assigned to thirty plus auditor appraisers and all of those auditor is there some standard for what flow means like sixty well i think that's set up in the work plants in other words three probable for it for my case five per month whatever the i think i'm asking is there some standard i don't think there's an ironclad standard other than by the end of the fiscal year by the end by the end of december they wanted to see eight or nine audit complete out of the normally assigned thirty six or thirty seven that was part of the problem in this case appellant was the only auditor appraiser that was not completing audit by the end of the december and that problem carried over into the remainder of the fiscal year when come may in june there was a number of audit she had that was incomplete if every auditor appraiser in the office submitted audits at the appellant did in this case there would be a backlog come may or june that was the problem